The Health/care Divide: Breastfeeding in the New Millennium

By Laufer-Ukeles, Pamela; Barzilay, Arianne Renan | Columbia Journal of Gender and Law, Winter 2018 | Go to article overview

The Health/care Divide: Breastfeeding in the New Millennium


Laufer-Ukeles, Pamela, Barzilay, Arianne Renan, Columbia Journal of Gender and Law


Abstract

Given recent health and cultural pressures to breastfeed, this Article argues that legal and societal developments should enable working mothers to choose whether or not to breastfeed without sacrificing their employment. In analyzing current solutions for working mothers, we identify two major developments, which we term "separation strategies, " to contend with the health push: limited and unpaid pumping breaks at work established by the Patient Protection and Affordable Care Act and the advent of an online market in human milk. We critique these developments, despite the limited relief they may provide, for the way these strategies do not provide sufficient breastfeeding support and separate the nurturing act of breastfeeding from the nutritional benefits believed to be contained in breastmilk as a sole recourse for working women. Separation strategies reflect the legal and societal undervaluing of direct, symbiotic parental care and the way scientific priorities tend to separate and sterilize nutritional and relational benefits while overlooking additional health benefits of the breastfeeding method, as well as the cost, threats to breastmilk supply, and distributive effects of separation strategies. We describe the way legislative measures, antidiscrimination law, and constitutional rights have failed to aid breastfeeding mothers in the workplace. Finally, we articulate ways in which the workplace can be restructured to accommodate breastfeeding and, as a result, parental care more generally.

INTRODUCTION

World health authorities have decreed that all mothers should be exclusively breastfeeding, suggesting that formula is not a suitable option. (1) Such an announcement has created a sea change in infant nutrition and a host of concerns and considerations to which law and society are only beginning to respond. This Article explores the effects that health-based guidelines urging breastfeeding are having on society, legislation, and case law, and the development of online markets in human milk. It evaluates and critiques the legal responses available thus far, adding consideration of these new developments to a larger discussion on the undervaluing of care (2) and the need to restructure workplace norms. (3)

Based on a myriad of scientific studies indicating health benefits of breastfeeding for children and women over the past decade, the World Health Organization (WHO) has been pressing the importance of increasing breastfeeding rates, treating breastfeeding as a global health priority. (4) In the United States, authoritative health bodies like the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) have led the charge in urging breastfeeding by mothers nationwide. (5) These organizations use language that elevates breastfeeding to a "miracle investment" and advise that increasing rates of breastfeeding can decrease infant mortality and prevent ailments ranging from respiratory diseases to cancer. (6) Without judging the accuracy or reliability of scientific studies, it is clear that health-based guidelines are exerting pressure on mothers to breastfeed through doctors and health campaigns. (7) Some scholars argue this pressure created a cultural ideal of "lactivism," which dictates that good parenting includes breastfeeding. (8) Such pressures have turned the discussion of breastfeeding away from one of personal choice over reproductive capacities, (9) and towards one of health imperatives, despite the fact that health imperatives have a history of overwhelming women's sense of autonomy and control regarding their reproductive capacities. (10)

At the same time, breastfeeding demands time, resources, and energy from mothers who must also provide economically and emotionally for children, among other responsibilities. Additionally, the medical push to breastfeed clashes with a workplace that has traditionally not been amenable to breastfeeding. …

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