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"Breastfeeding: Inadequate Laws Still Creating Common Struggles For Nursing Mothers" by Jessica Tomkiell

Breastfeeding: Inadequate Laws Still Creating Common Struggles For Nursing Mothers

by Jessica Tomkiell

Breastfeeding is the act of nourishing an infant with milk that is produced from a woman's body. Lara M. Gardner, A Step Toward True Equality in the Workplace Requiring Employer Accommodation for Breastfeeding Women, 17 WIS. WOMEN'S L.J. 259, 261 (2002). Pregnant women have become bombarded with information about how "Breast is Best". E.g., U.S. Dep't of Health & Human Services, Centers for Disease Control and Prevention (2006) at 2-3 (Feb. 2, 2013), and all of the "uncontested health benefits", Id. at 2-3, of breastfeeding before the baby is born. Even the American Academy of Pediatrics recommends an infant be exclusively breastfed for their first six months of life, and if possible up to their first birthday due to the benefits breast milk can give to the child. Centers for Disease Control and Prevention: Morbidity and Mortality Weekly Report, Mar. 26, 2010.

It may be a very challenging choice for a mother to make, whether to naturally breastfeed her child or formula feed instead. If it is not a hard enough choice to choose between breast milk and formula, those who choose to breastfeed will encounter additional difficulties. These struggles can range anywhere from a lack of family support, social pressures, problems returning to work, or a combination of these factors. Moreover, a mother may feel incriminated when she is trying to breastfeed, especially in public. This is in complete opposition to the encouragement of mothers to breastfeed by the government, media, and doctors. Danielle M. Shelton, When Private Goes Public: Legal Protection for Women Who Breastfeed in Public and at Work, 14 LAW & INEQ. 179 (1995). Subsequently, a mother who chooses formula may experience feelings of disdain from society, or may feel the pressures of not being an adequate mother.

Benefits Of Breastfeeding

From early on in history, infants were exclusively breastfed, as it was their only way to receive nutrients in the infantile state of life. Linda C. Fentiman, Marketing Mothers' Milk: The Commodification of Breastfeeding and the New Markets for Breast Milk and Infant Formula, 10 NEV. L.J. 29, 36 (2009). Breast milk contains key nutrients for infants and will change its composition over time in order to adapt to the growing infant's needs. Womenshealth.gov, Why Breastfeeding is Important, (Mar. 23, 2013), http://www.womenshealth.gov/breastfeeding/ whybreastfeeding-is-important.

Numerous benefits have also been associated with breastfeeding for the infant. Infants who are not breastfed are: "twice as likely to develop ear infections as infants who are exclusively breastfed; 1.5 times more likely to die of Sudden Infant Death Syndrome compared to infants who were breastfed for four months; 3.5 times more likely to be hospitalized or die from lower respiratory tract infection compared to infants who are exclusively breastfed for four months; and thirty-two percent more likely to become obese.". United States Breastfeeding Committee, Briefing Document to Support Appropriations for Breastfeeding, (Mar. 23, 2013), http://www.usbreastfeeding.org/Portals/0/Publications/Briefing-Document-Approp-FY12.pdf; see also Elizabeth Hildebrand Matherne, Lactating Angel or Activist? Public Breastfeeding as Symbolic Speech, 15 MICH. J. GENDER & L. 121, 124-25. Additionally, studies have shown that formula fed babies have a higher risk of developing middle ear infections and pneumonia. Alicia Dermer & Anne Montgomery, Breastfeeding: Good For Babies, Mothers and the Planet, (Mar. 6, 2013), http://www.missfoundation.org/miracles/breastfeeding.html. Along with the health benefits, studies have linked a lower abandonment rate and less abuse towards children to those that had been exclusively breastfed. Matherne, supra, at 125. This is believed to be due to a bond created between the mother and the child while breastfeeding.

While breastfeeding has numerous personal benefits, it also aids the government in reducing public spending. Through the government program Women, Infants, and Children (WIC), if a mother meets certain income criteria, she may be eligible for a subsidy to help with the cost of infant formula. In 2009, the government spent $850 million dollars on infant formula alone. Center on Budget and Policy Priorities: WIC Food Package Should be Based on Science: Foods with New Functional Ingredients Should be Provided Only If They Deliver Health or Nutritional Benefits, (Apr. 24, 2013), http://www.cbpp.org/cms/?fa=view&id=3201. The American Academy of Pediatrics has asserted that breastfeeding decreases the cost of WIC, and lowers the environmental and energy burdens from the production of formula. Am. Acad. of Pediatrics, Breastfeeding and Use of Human Milk, 115 PEDIATRICS 496, 497 (2005).

Lastly, a mother's decision to breastfeed can also benefit her employer and her health insurance company. These benefits stem from the infant having a lower propensity of becoming ill. If a mother has a sick child, she will often miss work to either take care of her child or bring them to a doctor. Employers benefit from a less-absent employee, and the health insurance company will benefit from not incurring as many doctor claims from office visits. Dermer & Montgomery, supra, at 1. Altogether a mother who makes the personal decision to breastfeed her child will create multiple benefits that have a much larger impact overall, than it just being a healthier way to provide nourishment.

Difficulties For Breastfeeding Mothers

Family, Social, And Other Common Barriers

Common barriers preventing a new mother from nursing her child include the existence of negative attitudes and social stigma of public breastfeeding. Social attitudes may influence a mother to feel guilty about her personal choice to breastfeed, or may cause her to feel uncomfortable feeding her child in public. Regardless of the numerous scientific benefits, there is still a tremendous amount of public objection that creates the negative connotation that exists today. Matherne, supra, at 122. The social norms are having a negative attitude towards breastfeeding where many may feel that breastfeeding is just another alternative to formula. These social norms can make a mother feel embarrassed or angry making it difficult for a mother to nurse her child in public.

For example, in today's culture, men view breasts as objects of sexual gratification, creating a disconnect between the public perception and the biological function, thus devaluing the breasts and breastfeeding. Lisa Hansen, A Comprehensive Framework for Accommodating Nursing Mothers in the Workplace, 59 RUTGERS L. REV. 885, 889 (2007). This widely accepted sexual appeal may create angst for a mother and may deter her from initially or continuing to choose breastfeeding.

Lack of knowledge pertaining to nursing is another hardship many new mothers face. Motherhood may be considered a natural instinct, but mothers and infants cannot rely on instinct alone. Mothers may experience difficulty with latching or production. Executive Summary: The Surgeon General's Call to Action to Support Breastfeeding, 3 (Mar. 16, 2013) http://www. surgeongeneral.gov/library/calls/ breastfeeding/executivesummary.pdf. The solution is having proper education and support to correct lactation problem. Id. at 4. The key to ensuring that a new mother is provided with the education she needs is by establishing access to lactation specialists in the hospital, and after discharge home. It is imperative that hospitals have protocols and policies to assist a breastfeeding mother physically and intellectually. Id. Many hospitals are shortcoming in their protocols and policies; therefore the uneducated mother ultimately may not breastfeed.

Aside from education, it is paramount that a new mother has family and social support. Family and community support can be exceptionally influential in the mother's initial decision and can ultimately make or break her breastfeeding experience. Id. at 4. More often than not, the initial decision process will include the partner and family's opinion on what they believe is best. If they are not supportive of the mother's decision, there is a greater expectancy that she will not choose to go through with breastfeeding her infant.

Employment Barriers

Ultimately, one of the toughest complications a breastfeeding mother will face is her return to work while still breastfeeding. She may have already dealt with maternity leave issues and now she must work with her employer to ensure the time and place necessary to either nurse or express her milk. Id. Due to these difficulties, working mothers are less likely to choose to begin breastfeeding. Id.

For a nursing mother, dual issues arise when continuing to breastfeed while working, i.e. milk supply and discrimination. In order to keep up her milk supply, a mother will need to express her milk every few hours. Shelton, supra, at 180. Additionally, a mother may face possible discrimination and/or harassment with her choice to express milk at work and asking for accommodations. Hansen, supra, at 905. In discussing her choice to nurse, a mother may be faced with an employer who is hostile in complying with her need for frequent breaks and a private place to breastfeed or pump. Shelton, supra, at 186. Frequent breaks are necessary, because a mother must pump about every two to three hours. If she is not able to express her milk as often as her infant is eating, then she may experience engorgement, possible infection, and her milk may dry up. Elizabeth N. Baldwin & Kenneth A. Friedman, Working it Out: Breastfeeding at Work, 93 MOTHERING 64 (1999) (Mar. 21, 2013), http://www.llli.org/law/ lawemployment.html. The pumping itself may take 15 to 20 minutes, and does not include the time to walk to the lactation room, set up her pump, clean the pump, and store the expressed milk. Brit Mohler, Is the Breast Best for Business?: The Implications of the Breastfeeding Promotion Act, 2 WM. & MARY BUS. L. REV. 155, 159 (2011). Ultimately, the mother may be asking the employer for anywhere from 45 to 75 minutes per eight-hour shift for unpaid breaks to accommodate her lactation. Nina Cavalier, Working and Nursing, 17 NEW BEGINNINGS 46 (2000) (Mar. 21, 2013), http://www.llli.org/nb/nbmarapr00p46.html.

There is a large-scale problem in the United States because the majority of maternity-leave benefits, which can range from four to 12 weeks, are unpaid. Deborah A. Widiss, Changing the Marriage Equation, 89 WASH. U.L. REV. 721, 732-33 (2012). This creates a financial hurdle for many families. Families must make a decision if a mother will take her entire maternity leave and breastfeed, or go back to work for additional income. When the mother decides to be at home with her infant, she will have to find income by some other means, i.e., a working spouse/partner or possible disability benefits. Id. Once the maternity leave is over, the family will need to decide whether the mother should continue nursing when she returns to work. The time spent expressing milk during her shift will be unpaid, and, as a consequence, the mother will have to work a longer day to incorporate her additional breaks.

Current Laws

In response to these obstacles, the United States has been working to enact laws that will support breastfeeding mothers. In 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA). Id. This new legislation amended the Fair Labor Standards Act (FLSA) by adding provisions for employers. The PPACA now requires an employer to provide reasonable break times for an employee to either nurse or express milk. Id. Additionally, the employer must also furnish private accommodations must not be a restroom. Id. Other benefits to the new legislation include a definition for reasonable break time for a nursing mother, Reasonable Break Time for Nursing Mothers, 75 FR 80073-01 (2010), which includes time from walking to the room up until storing the milk, and extending women's health benefits through insurance with the inclusion of a breast pump subsidy.

In 1993, the Family Medical Leave Act (FMLA) was enacted to provide some rights to a nursing mother in an employment setting. Stacey A. Tovino, Scientific Understandings of Postpartum Illness: Improving Health Law and Policy? 33 HARV. J.L. & GENDER 99 (2010). FMLA required that employers allow a one-hour unpaid break for every eight-hour shift worked. New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. §6(a)(1)(1998). This break may be split up if necessary to express milk. Id. This act provided an opportunity for women to be able to express milk at work without the fear of being fired. Id.

A nursing mother facing discrimination may try to bring a claim against her employer. A widely utilized cause of action is the idea that breastfeeding is a medical condition following pregnancy. Yet courts generally reject these pleadings, holding that breastfeeding is a choice rather than a related medical condition to pregnancy. See Hansen, supra, at 903; Feies v. Gilpin Ventures, Inc., 906 F. Supp. 1487, 1492 (D. Colo. 1997). This holding prevents these discrimination claims from being brought under the Pregnancy Discrimination Act (PDA). Pregnancy Discrimination Act, 42 U.S.C. §2000e (k) (2006). Courts will uphold discrimination claims under the PDA only if the woman was pregnant when the harassment occurred during her employment.

Before these federal law changes, breastfeeding women were granted only limited rights under state law. State law ranges from restrictions on public breastfeeding to breastfeeding employment rights. State laws can grant additional rights, but they cannot limit the rights currently allowed by the federal government. Employment and labor laws addressing a mother's rights federally, state-policing power regulates the public exposure aspect of breastfeeding in public. Public indecency statutes control the exposure of body parts in a public setting. Often, law enforcement will utilize these statues against a mother who has exposed her breast while nursing. States vary on how they address public exposure with their indecency statutes. Statutes range from allowing a mother to breastfeed in public without covering up, to ones that make it illegal to breastfeed unless mother and baby are fully covered. Lawrence M. Friedman & Joanna L. Grossman, A Private Underworld: The Naked Body in Law and Society, 61 BUFF. L. REV. 169, 197 (2013). In New York, the public indecency law specifically states that the "exposure of private parts does not apply to breastfeeding of infants". N.Y. CIV. RIGHTS LAW §79-e (McKinney 2013).


Knowing the beneficial aspects of breastfeeding, countries try to create a yearly breastfeeding goal. As of 2010, the United States did not meet their breastfeeding goal. Bartick M, Reinhold A., The Burden of Suboptimal Breastfeeding in the United States: A Pediatric Cost Analysis, PEDIATRICS OFF. J. OF THE AM. ACA. OF PED. 1052. This failure cost the United States $13 billion in expenses. Id. In response the Surgeon General has proposed a "Call to Action" seeking to aid mothers in their breastfeeding efforts. Centers for Disease Control and Prevention: Surgeon General's Call to Action to Support Breastfeeding (Mar. 23, 2013), http://www.cdc.gov/ breastfeeding/promotion/calltoaction.htm. This proposal is a national project created in conjunction with the Center for Disease Control to help establish more federally funded coalitions for breastfeeding. By informing mothers, society, and birth facility support about educational measures concerning breastfeeding and creating more places for support, we may see a positive trend in the number of breastfeeding mothers in the future. Centers for Disease Control and Prevention Breastfeeding Report Card--United States, 2012, (Apr. 2, 2013), http://www.cdc.gov/breastfeeding/data/reportcard.htm.

The "Call to Action" proposes creating "family-friendly communities and providing more support from birth facilities, health professionals, and in child care settings". Id. Birth facilities play a crucial role in initiating. If an infant is not exposed to breastfeeding during their first hour of life, the success rate of breastfeeding will decrease. The instruction and support from maternity nurses will greatly impact a mother's decision to breastfeed or formula feed their infant. In order to effectuate the correct support system, facilities need to establish policies and practices regarding a mother's wishes on how to feed her child. Id.

The Surgeon General and legislators are beginning to realize the importance of breastfeeding. An increase in the number of breastfed infants will increase the number of healthier children and in return, reduce healthcare costs. Sarah Andrews, Lactation Breaks in Workplace: What Employers Need to Know About the Nursing Mothers Amendments to the FLSA, 30 HOFSTRA LAB. & EMP. L.J. 121, 124 (2012).

What Has Changed And Changes That Need To Be Made

Personal Choices

A large consensus still exists that expresses an idea that breastfeeding in public is "dirty, sexual, embarrassing . . . and something that should be kept behind closed doors." Shelton, supra, at 179. In order for a mother to feel comfortable in feeding her child, this social stigma needs to change. Commercials and billboard ads, while creating public awareness, have not been enough. These advertisements are a movement in the right direction, but the Surgeon General's proposals may be a big step in gaining additional public acceptance. As a community, the erotic meaning of the breast needs to change to create an understanding of the biological function breast in order for breastfeeding in public to no longer be considered offensive. Friedman, supra, at 204.

Additionally, statistics show an increase in the number of breastfeeding mothers if a she has outside support in her attempts to nurse. U.S. Dept. of Health & Human Services, Executive Summary: The Surgeon General's Call to Action to Support Breastfeeding, Washington, D.C., Office of the Surgeon General, Jan. 20, 2011. The proposal by the Surgeon General, to create more family and community involvement, may lead the United States in the right direction.

Hospital Support And Government Expense

Frequently a mother will experience unexpected hurdles she may face regarding her choice to breastfeed even in the hospital. One hurdle is a lack of education and/or support from lactation consultants. Availability of lactation consultants varies with each hospital. Lactation consultants help to promote breastfeeding to new mothers and they need to be available to mothers during their entire stay in the hospital. It is just as important for the consultants to be available after a mother leaves the hospital as well. The PPACA now provides coverage for in-home visits from lactation consultants and nurses once a mother leaves the hospital, however if the hospital is understaffed the mother will not be afforded this extra education.

Another hurdle is pressure from formula companies. Many companies begin sending advertising information, coupons, and samples to mothers as soon as they gain information that she is pregnant. Additionally, many hospitals are provided with free formula gifts to give to new mothers to promote their product. These advertising strategies bombard the new mother and she may lose focus on her primary objective to breastfeed.

The immense cost to governmental programs associated with formula is also an issue. It is estimated that formula feeding can cost four times more than breastfeeding. Matherne, supra, at 126-27. In 2002, the United States Breastfeeding Committee estimated that families spent more than $2 billion dollars per year on formula and WIC spends more than $578 million. U.S. Breastfeeding Comm., supra, at 1. In 2008, it was estimated that feeding a child formula costs a family $1,200 per year as compared to breastfeeding, which was only about $300 per year. Matherne, supra, at 126-27. The cost to breastfeed is pursuant to an increase in the amount of food a mother needs to consume in order to create her milk. Even though programs like WIC have been formed to supplement part of this cost for families, many of these programs are underfunded. See U.S. Dept. of Health And Human Services, supra, at 79. If more women breastfed, this cost would drastically decrease.


One of the important aspects to the PPACA legislation is the requirement that a restroom is not a suitable or sanitary place for nursing or milk expression. Mohler, supra, at 168. Even though law mandates certain accommodations for the mother, there are many employers who may experience financial difficulties in complying with the new laws. Id. at 167-68. The costs to an employer hinge on what resources they already have available, and what they still need to provide. Id. at 172. The employer costs emerge from providing the time and place for mothers to express milk and creating a support system for her as well. Id. at 167-68. Some employers have zealously provided their employees with lactation rooms and time, while others have gone as far as offering pumping equipment. Kantor, supra, at 1. Law mandates these requirements for employers, but the government should assist them by providing some type of tax credit or other incentive. This would give a mother what she needs as well as aiding and incentivizing employers who have to foot this extra cost.

Current breastfeeding laws have created an employee divide between those who benefit from the new legislation, and those whom legislation still does not reach. This legislation creates a divide between blue-collar and white-collar working mothers. This divide results from lower level employees who often cannot afford to take the unpaid breaks, or still might not be provided with the adequate space necessary. Hansen, supra, at 895. A mother may experience a decrease in her milk production if she is not able to express her milk on a schedule similar to her baby's schedule. See Reasonable Break Time for Nursing Mothers 75 FR 80073-01 (2010). In many instances, employers will provide only the minimum break requirements, and it is often left to the mother to take the initiative in inquiring about this with her employer. Mary Ellen Slayter, Workplaces Accommodate Breast-Feeding Mother, Sometimes Grudgingly, WASH. POST., Oct. 28, 2002, at E04. More white-collar corporations, rather than their blue-collar constituents, will have the resources to provide the requisite space and time allowances. It is also the white-collar employees who are less financially impaired with taking an unpaid break than mothers in lower-level employment. Jodi Kantor, On the Job Nursing Mothers are Finding a 2-Class System, N.Y. TIMES, Sept. 1, 2006, at A1.

Furthermore, current laws still do not provide equal benefits to all mothers who choose to breastfeed. Working mothers still lack the support they need to breastfeed when they return to work. Executive Summary, supra, at 2. While the FMLA and the PPACA are helpful to many, they do not adequately provide support to all working nursing mothers. The laws and benefits apply only to employers who have more than 50 employees, plus the employee herself must be considered a full-time employee having accrued a certain number of hours to be eligible. Mohler, supra, at 159; 29 U.S.C. §2612 (2006). The FMLA may allow for a woman to take up to 12 weeks unpaid from work after birth but there is the caveat that time missed from work before the baby is born is included, i.e. if a mother is on bed rest. Id. Additionally, 12 weeks is still only half of the time that is recommended to breastfeed infants. Id. The laws also disadvantage low-income individuals in that time-off work and nursing breaks are all unpaid. This loss of income can be detrimental to many working mothers and their families. Hansen, supra, at 907; Kantor, supra, at 1.


Socially, breastfeeding should be viewed as the natural way of feeding an infant. Providing an infant with breast milk is one of the most beneficial ways a mother can assist her child in their growth. Not only does breastfeeding have benefits for the baby, there are additional benefits to the mother and even the government. Even though not all mothers are physically able to nurse their infant, the more mothers who try and are successful, the more beneficial it is to everyone. For a mother to be successful in her breastfeeding attempts, it is imperative that she has a support system. This system can range from support at home, assistance from lactation consultants, and an employer who will assist her with time and space to express her milk.

Currently, the United States is not meeting its breastfeeding goals. In order for the United States to increase the rate of breastfeeding mothers, the widely held negative view of breastfeeding needs to change and there needs to be more assistance for a nursing mother in the different aspects of her life. Laws are beginning to provide the support a nursing mother needs. Nevertheless, the laws do not provide benefits to all nursing mothers. Laws are restrictive on which employers must comply with its provisions. Blue-collar mothers, who would benefit the most, are often the people who receive no assistance from these laws. New legislation will need to work on encompassing all mothers who wish to nurse, not just a select few whose employers are covered under the law.

The Surgeon General's "Call to Action" is a great place to start in order to put a positive light on breastfeeding. Members of the general public will not be able to change their beliefs unless they are educated. Advertisements are important for educating the general public. This new information may help foster a more positive view of breastfeeding. The advertisements need to focus on the idea that breastfeeding is natural, and exposure of the breasts to nourish an infant is in no way sexual. Between inadequate laws and views of the general population, the rates of breastfeeding mothers will not increase. In order for the United States to see a significant increase in its rates, everyone needs to be on the same page.

Jessica Tomkiell is a Juris Doctor Candidate, Class of 2014 at Albany Law School. She is presently interning with Schenectady County Family Court, Hon. Mark L. Powers, and provides pro bono assistance, in association with the law school, for Pro Se Divorce, Child Advocacy, and Kinship Care. Along with being a law school student, she is a proud mother of a two-and-a-half-year-old daughter and a four-month-old son.

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