World Breastfeeding Week: Breastfeeding And Law

The benefits of breastfeeding are recognized universally. Amongst the various interventions that are required to encourage breastfeeding amongst women is to create an enabling environment. Such environment can no longer remain confined to the four corners of the homes, and be the sole responsibility of the family, rather with the increased participation of women in the workforce, it is important that necessary infrastructural arrangement is made available for lactating mothers to have the possibility of breastfeeding in a comfortable environment ensuring all due safety, security, privacy and dignity of the mother and the child in all public places, officers and factories etc. There is a need for complete overhaul of the institutional, architectural and psycho social structures in the society, calling for departure from either stigmatizing or sexualizing the act of feeding to mainstreaming breastfeeding as an issue of child right.

Of late, we have seen shopping malls making provision for breastfeeding and baby diaper changing rooms. However, so far as other public spaces, and offices- both government and private workplaces are concerned, we see apathy from the authorities in the helm of affairs towards providing for breastfeeding facilitates.

One recollects Prime Minister of New Zeland Ms. Jecinda Ardern creating history about two years ago when she attended the meeting of UN with her infant on lap, whom she was breastfeeding at that time. Prior to that in 2017, Senator Larissa Waters from Australia had donned the lime light by breastfeeding in the floor of the house while moving a motion. Her action created history, as prior to that, infants were not allowed inside the chambers of the Senate. Same year, in India, Assam legislator Ms. Angoorilata Deka had demanded a breastfeeding room for lactating legislators like her, citing the example of Tanzania, where such nursing rooms are available in the Parliament building. Similar initiatives were taken in Zimbawe recently.

In Argentina, Member of Parliament Victoria Donda was seen breastfeeding in 2015. One of the earliest examples of breastfeeding in Parliament was in 2003, when Ms. Kirsty Marshall, breastfed her 11-day old daughter during Question Time in the Victoria Parliament. She was directed to be removed from the house, on the ground that the infant was a "stranger" to the house and as such was not allowed inside it, besides the fact that eating and drinking is prohibited within the house. Since breastfeeding involves "drinking" milk, she wasn't allowed to continue as such. Later, the rules were modified to clarify that an infant for the purposes of breastfeeding is not a stranger and as such its entry is not banned.

Similar incident had happened in Canada when in 2012, Sana Hassainia was asked to remove the baby from the house. Thus, the phenomena of not having a breastfeeding room in the legislative buildings/ parliaments across the globe is common.

While women legislators are equal law makers, when it comes to equal rights, they have struggled to actualize it. Parliaments or the legislatures are not exceptions, even courts, government offices, private offices are no different. Until the establishment of the Creche in the Supreme Court of India, there was no facility for women lawyers, court staff or litigants to breast feed their child. Lack of access to dignified place for breastfeeding has led to attrition of women lawyers from the profession once they attain motherhood, and similar is the story of women employees in any other set up. While the problem is universal, solutions have been ad-hoc.

In India, although there is no law mandating breastfeeding, The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 discourages infant milk substitutes, their sales, promotion etc. and prohibits people from trying to suggest that infant milk substitute is equally good or an alternative of mothers' milk. The Act has many laudable provisions, including ban on advertising infant milk substitutes and ban on incentivising or inducing people to opt for such substitutes, and instead mandates that such substitutes should declare clearly in capital letters that "mother's milk is best for your baby". Distribution of infant milk substitute has been permitted only in cases of orphanages. Thus, the objective of the Act is to encourage breast feeding and discourage infant milk substitutes.

Despite such provisions, disguised commercials on television about infant milk substitutes are rampant. As one could see, the implementation of the Act is far from satisfactory. Therefore, its time to look beyond the said Act and take positive initiatives to make breastfeeding possible without any hinderance. Such an approach is possible in view of Article 15 (3) of the Constitution of India, which permits special provisions to be made for women and children.

Moreover, India is a signatory to the Convention on Child Rights. Article 3 of CRC mandates that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 6 (2) provides that States Parties shall ensure to the maximum extent possible the survival and development of the child and Article 24 of the Convention provides that;

 "States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services."

This also includes to have provision for information about the advantages of breastfeeding. The principles contained in the Convention on Child Rights have inspired Section 3 of the Juvenile Justice (Care and Protection) Act, 2015, which amongst others recognize the principle of best interest of the child and principle of non-waiver of rights. Thus, in view of the undisputed benefits of mother's milk for the development of the child, and his/ her health and immunity, it is essential that all necessary steps are taken to protect the right to health of children in the country. In this context, one would recollect the Supreme Court of India has since long held right to health as a part of right to life guaranteed under Article 21 of the Constitution. Hence it is high time law mandates child friendly workplaces, which amongst others include breastfeeding facility in a safe and dignified environment thereby promoting health of children.

Besides the above-mentioned Act, which indirectly approaches the issue of breast feeding, there are other legislations which also deal with the issue. The necessity of nursing break has been recognized in a limited manner under Indian law. For instance, under the Maternity Benefits Act, employers are required to provide nursing breaks of prescribed duration for new mothers in order to express breast milk for nursing child, until a child reaches the age of 15 months. Nursing breaks are fully paid.

The provision for nursing break and the facility for creche has been mandated under various State laws in India as well as in sector specific legislations, such as planation, factories, mines etc. In fact, the 2017 amendment of the Maternity Benefit Act, mandated that employer has to provide for creche in case more than 50 employees are employed and an employee is allowed four visits to the creche.This provision can be said to include visit to creche either to nurse or feed the child. This provision can also be read to appreciate that lactating mothers need to express milk on a timely basis. However, it fails to recognize rights of children and women, irrespective of the need to meet the threshold requirement of having a specified number of employees.

The limited applicability of these laws to specific sectors, and the lack of an overall umbrella legislation making provision for breastfeeding facilities is one of the biggest hinderances in ensuring the child and women's right to be fed and feed milk respectively. Proactive steps by employers and authorities in charge of public places smacks of sever apathy towards the issues. There is lack of mandatory building norms, requiring the provision for breastfeeding rooms. The issue has still not been part of mainstream discourse, and has remained shadowed, as if it doesn't exist.

As late as 2018, the Kerala High Court had to judicially pronounce that, there is nothing obscene about a magazine cover, which had a picture of a breastfeeding woman and that "shocking one's morals" is an "elusive concept". Its time, society and legislators change the looking glass, and address the issue in a pragmatic manner, which shall encourage mothers to breast feed rather than look for by lanes, car parking and toilets to feed their infants. Let there be some dignity to the process of breast feeding.

About the Author:  Dr. Anindita Pujari is an Advocate on Record, Supreme Court and Hon. General Secretary, Bar Association of India. She had successfully petitioned for establishment of effective crèche in the Supreme Court of India in 2015.