46 Pages Posted: 7 Oct 2017
Date Written: 2017
Over the last twenty years, state legislatures passed a number of laws designed to protect, support, and encourage breastfeeding, including laws that protect public breastfeeding and lactating employees in the workplace. While the passage of these laws, and more recent federal laws, were cheered on both sides of the aisle as an unqualified positive for women, families, and public health, this paper argues that such unbridled enthusiasm may be unwarranted.
While the legal rights of women in the reproductive process have been extensively theorized through the lens of abortion and contraception, considerably less attention has been paid to the question of how the law should approach the rights of lactating women. As courts have generally been unwilling to envision lactation rights as encompassed within existing anti-discrimination or accommodation frameworks, modern statutes that specifically address lactation therefore fill a void in the law. This paper turns a critical eye on such laws, by documenting their history and exploring the ways that they are both under-inclusive – leaving without protection individuals that the state should, as a normative matter, be interested in protecting – and have the effect of reinforcing the assumed naturalness and primacy of the maternal experience and the desirability of traditional family structures. Thus, while lactation laws respond to a real need, they do so at the expense of reinforcing traditional notions of gender, motherhood, and family.
The paper focuses on three main critiques of modern lactation laws. First, these laws often frame the rights involved as the rights of an infant child to access breast milk, not as the right of a woman to lactate. Break time laws, for instance, often mandate that any milk expressed during a break be “for [the woman’s] infant child.” This language conditions a woman’s rights to lactate on the eventual benefit to her child and does not protect her rights as an individual actor with potentially separate interests. Second, modern lactation laws condition legal protections for lactating women on women’s adherence to traditionally feminine, and maternal, gender norms. As an example, both Missouri and North Dakota protect public breastfeeding only when it’s done with “discretion” or “modesty.” Finally, lactation laws restrict the access of non-traditional families to the benefits of breastfeeding and breast milk by limiting the language of the statutes to protect only certain types of lactation. This limitation leaves many lesbian and gay parents, socio-economically disadvantaged families, and adoptive parents without an economically viable or legally protected way to provide breast milk to their children. These common characteristics of modern lactation laws work in concert with one another to encourage or even require women and families to adhere to traditional roles and structures. This paper next explores how legislatures could draft new lactation laws that meet the stated public health goals of the current laws while avoiding the negative discursive effects and distributional consequences identified.
Finally, the history of lactation in the law is used as a representative microcosm of how the law still grapples with sexual equality in the face of real physical differences between men and women – and also as an example of how such struggles might be effectively addressed.
Keywords: Gender, Breastfeeding, Feminist Legal Theory, Critical Legal Theory
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