Breastfeeding Laws

Should breastfeeding be required by law? I think Rebecca Roache is right to find the idea inadvisable, but not crazy.   You cannot induce pre-term labor (after 24 weeks), putting your offspring at risk, in order to reclaim your body.  The law forces you to give the fetus continued access to your womb; why not also to your mammary glands, after birth?  As Roache says, "it would be difficult to find a simple and clear answer to this question."  She winds up with these sensible reflections--
There are many parenting practices that are desirable but not absolutely necessary, and parenting would likely be a joyless business if they were all legally enforced.  Helping children with their homework, persuading them to participate in sports, encouraging them to keep and care for pets, and facilitating relationships between children and their grandparents are all, plausibly, good but not essential for children.  Yet it is far from obvious that they ought to be legally enforced.  Such legal intervention may bring benefits for children, but these must be weighed against the harms arising from the restriction on parents’ freedom to raise their families as they wish and the familial disruptions likely to occur when parents are punished for non-compliance.  Even without legislation, however, parents can be persuaded to adopt these desirable practices, via public health campaigns, the media, cultural changes, and so on.  In such cases—and perhaps also in the case of breastfeeding—the law is not the best tool for safeguarding children’s well-being.
The "perhaps" in the last sentence hints at a lingering doubt.  Biologically, breastfeeding is continuous with pregnancy and has clear and certain health benefits.  If you have to complete a pregnancy by law, is it so far-fetched to say you have to complete pregnancy and its biological last chapter--lactation?  As a matter of pure ethics, it doesn't seem outrageous.  But then, there's nothing really "pure" about ethics.  "Get your hands off my body," women are going to think, reaching back into the language of the pro-choice movement.  Mandatory lactation calls to mind mandatory impregnation, and Margaret Atwood's book The Handmaid's Tale.  A law that triggered that sort of anger and offense simply couldn't do anybody any good.  I suspect that if we had lactation laws in the US, women would actually rebel by breastfeeding less.

So: there should be no legal requirement to breastfeed. It's just an ethical matter:  breastfeeding has important health benefits.  Just as women should put their kids in car seats and buckle their seatbelts and give them check-ups and vaccinations, they should give them the best start in life by breastfeeding them. Right?   In fact, "mothers should breastfeed" seems to trigger that "get your hands off my body" reaction in some women, even if the "should" is simply ethical, and not legal.  That's very puzzling, but a topic for another day.


s. wallerstein said...

Buckling seat belts are a legal obligation where I live. Aren't they in the U.S. too? I think that children need a vaccination certification to enter school here, and sending children to school is a legal obligation, so vaccination would be one also.

I don't see why the fact that making breastfeeding an obligation, legal or ethical, turns women off is per se an argument against making it an obligation.

Paying taxes turn people off, but they are a legal obligation and an ethical one.

The argument against touching "my body" runs up against the fact that another body, that of the baby, is involved.

I suppose that the wisest solution would be to reward breast-feeding, for example, with tax discounts rather than making it obligatory, but that is a question of political prudence rather than of ethics.

Faust said...

This paragraph:

"Perhaps breastfeeding significantly differs from carrying a baby to full term in that it is possible for a non-breastfed baby to survive and flourish, whereas it is not possible for a baby aborted at 24 weeks to do so. Typically, then, failing to breastfeed a baby inflicts less suffering on it than failing to carry it to full term: this might justify legally preventing women from aborting their 24+ week fetuses whilst allowing mothers to choose whether or not to breastfeed. However, in reality, this is hardly a significant difference. Babies born as early as 24 weeks can and do survive and flourish—indeed, this is partly why 24 weeks marks the cut-off point after which abortions are not permitted—and non-breastfed babies often suffer health problems as a result of not receiving breastmilk (see the links given in the second paragraph). Therefore, carrying a baby to full term, just like breastfeeding, is good for babies but often not absolutely necessary. Why, then, should only the former be legally enforced?"

is far too facile. It is quite unlikely that a baby born at 24 weeks will flourish. It is quite likely that a baby fed formula will flourish. These two events are not remotely comparable statistically speaking.

Jean Kazez said...

I've modified her argument a bit, so the issue is not abortion at 24 weeks, but induced labor for the mother's convenience. The law says that for the baby's sake, you can't do that...not at 24 weeks, not at 25...not at 35, 36...... Close to term, the risk of induced labor will not be huge, like the risk of using formula instead of breast milk is not huge. We can then ask why the law may reasonably forbid very late induced labor, but may not require breastfeeding.

Dom W said...

there are a number of disanalogies between induced premature delivery for maternal preference and non-breastfeeding.

One difference is that the risks involved with early labour include very serious illness or rarely death - even at close to term. The risks from formula feeding of term infants are much less serious (in developed countries). [Formula feeding in developing countries does carry a mortality risk]

another is that induced labour involves a medical procedure. There is a general principle that doctors cannot be required to provide treatments at patient request that lack medical indication. Even if a mother wanted to stop a pregnancy at 35 weeks say by going into labour - she would find it hard to do so. It is very easy then to enforce a sanction against inducing early labour at maternal request. It would be much harder to police any legal sanction against non-breastfeeding.

There aren't consistent or clear legal boundaries for acceptable parenting. But there is considerable value in people have a considerable freedom about how they live their lives, including how they parent their children. Many suboptimal, even harmful decisions by parents are not legally sanctioned, and this is probably appropriate. The threshold that I often refer to is that of a significant risk of serious preventable harm. If parental actions fall into taht category they should be prevented - if necessary by taking a child into care.
An analogous example where legal sanction or intervention would be potentially justified is an HIV positive mother with high viral load in a developed country who insisted on breast-feeding her child and thereby exposed them to a real risk of acquiring postnatal HIV.
Formula-feeding doesn't fall into that category.

Jean Kazez said...

Hi Dom, Formula feeding instead of breastfeeding is as risky as....what? I'd love to have a good analogy. It's as risky as...not vaccinating against certain things? Not putting kids in seatbelts occasionally? I take it that there's some significant risk involved, and my impression is that we don't legislate here really because breastfeeding is so intimate and personal. (We do of course legislate about seatbelts and vaccinations.)

The pregnancy induction issue comes in as a way of testing the assumption that we shouldn't legislate in areas that are intimate and personal. It makes us see that that doesn't hold across the board. So why else might it be bad to legislate about breastfeeding? Because....

I think that's the dialectic of Roache's post...at least that's how I read it.

Jean Kazez said...

p.s. In other words, I don't think the idea is that using formula and early induction are in all ways analogous.

s. wallerstein said...


There certainly aren't clear or measurable boundaries about acceptable parenting.

What's more, the fact that I may be an emotionally distant parent and that you may be closer to your children not only is most probably not within our control, but also
is much too "subjective" to be legally regulated or even ethically sanctioned. What occurs out of love takes place beyond good and evil (Nietzsche: not an exact quote).

However, some aspects of parenting are easy to regulate and to measure: having your children vaccinated, taking your children to the dentist, assuring that your children attend school, serving your children a nutritious diet, etc. I would say that breastfeeding a child is
simply a way of serving your child the most nutritious possible diet.

Rebecca Roache said...

Thanks for your interest in my blog post! Substituting my talk of abortion for your talk of induced premature labour for maternal convenience helps clarify the issue. I think that Dom's point about induced labour involving a medical procedure might go some way towards explaining why inducing premature labour (solely for maternal convenience) is illegal but formula-feeding is not. Since pregnant women cannot induce their own premature labour without medical assistance, the law that prohibits it controls the behaviour of pregnant women via controlling the conduct of the relevant medical professionals. (Presumably, if a doctor were to induce premature labour simply because the woman in question had requested it, the law would punish the doctor rather than the patient.) This law, then, is one step removed from - to borrow your term - the 'intimate and personal' area of a woman's pregnancy. On the other hand, a law enforcing breastfeeding would aim directly to control mothers' behaviour, which is what many people find objectionable. Perhaps, if women were able to induce their own premature labour without medical assistance, governments would shy away from legislating against it. I don't think that any of this significantly affects the ethics underlying the legislation, but that's another issue!

Jean Kazez said...

Hi Rebecca,

It seems to me that the law about late abortion/induction only "accidentally" concerns the doctor, but essentially limits the woman. In early pregnancy, women should be able to choose, it is said, because they should be able to control what happens to their own bodies. The provider is seen as merely facilitating that self-control. When the law prohibits abortion/induction after 24 weeks, it is setting limits to that sort of (it just so happens, doctor-mediated) self-control. Presumably there would be exactly the same rationale for forbidding the use of some home-brewed pregnancy inducer. There would just be additional issues about how to enforce a law prohibiting self-abortion or self-induction.

I think the more significant difference between inducing after 24 weeks and using formula is just the degree of risk to the baby (which Dom also mentioned). You might say the law should stay out of personal and intimate areas except when very high risks to health are involved, and in the case of using formula (at least in developed countries) the risk isn't great enough to warrant the interference.

Faust said...

Wouldn't some empirical data help in settling this question?

Lets say we compare results from quality formula feeding vs breast feeding. What difference are there in outcomes? I don't know, but having had a conversation with a doctor about this once, he indicated to me that the difference was measurable but not significant long term (most of the benefits involve the first few years of life).

We would then need to figure out a way to compare the difference in results between these two feeding methods with the different outcomes resulting from early delivery at various points in time.

My understanding, for example, is that after 37 weeks there is no significant difference in infant health or outcomes on delivery. This is why doctors will flexibly schedule C sections during this time frame for EITHER doctor or patient convenience, as applicable.

As far as I'm concerned this question is only interesting if someone could show that the dangers of formula feeding are X and that induction of labor at say...34 weeks are also X. If so then why allow formula feeding but not labor induction at the comparable time frame?

Jean Kazez said...

Faust, I don't think exactly equal risks are necessary for there to be an argument here. Suppose there were a law against smoking during pregnancy, but not against drinking. People found it scandalous to contemplate a drinking law--just abhorrent. You could then point to the smoking law to make the general point that legislation in this area isn't crazy or outrageous. You could make that point even if the risks involved were fairly different.

I take it Rebecca's view is that an anti-formula law WOULD have the same general sort of justification as an anti-induction law, but there are still many reasons not to have such laws...which she explains in her last paragraph.

Faust said...

The drinking example is interesting. As far as I know it's not illegal to drink during pregnancy. Are there any legal consequences to causing Fetal alcohol syndrome? Can a woman who drinks and takes drugs to excess during pregnancy be charged with child abuse at birth? A quick search turned up this article which seems relevant:


It may be that this entire topic is simply not particularly rational, or more charitably, that we have competing moral goods that are hard to adjudicate between, or that we have inconsistent practices around (This is actually my view, that there is a great deal of incoherence in procreative ethics, no doubt due in part to the difficulty of establishing the category "person").

But lets assume for a moment that baby formula was woefully inadequate for development. Lets say that children who were fed formula had test scores 50% lower, and had double the chance of getting sick. Real serious consequences. Would it THEN be so strange for a law to be made mandating breastfeeding? Would it be so different from laws punishing neglect through starving children?

Brett Hetherington said...

The case for legally enforceable breastfeeding crosses too many boundaries of freedom but the arguments for it as the preferred practise are extremely convincing.

(There are so many myths about the whole subject though. A breast-fed baby won't get ear infections?)

I also don't see how breastfeeding is an inconvenience. My partner thought the exact opposite and saw messing around with powder, bottles, sterilising and all the rest of it as a huge chore, that was thankfully unnecessary for her.

She also thought that the greatest thing about breastfeeding was not the (likely) health benefits for our baby [now 9] but was in fact the bond that it created between them...right up to this day!

I have to admit to some envy here. I used to watch her breastfeeding and really wish that I could do it too.

Bettina said...

Force Mothers to breastfeed for at least 6 months is right morally and spiritually. Should babies not have rights?! Bettina Scott-Bundgaard.

Bettina Scott-Bundgaard said...

Force Mothers to breastfeed for 6 months at least for God's sake! Bettina.