Breastfeeding and the Law

As more mothers breastfeed, they are more likely to run into legal problems that involve breastfeeding issues. Some of the types of breastfeeding legal cases are:

• Family Law — Custody and visitation (parenting time) decisions are made in family law cases, where the parents either are divorcing, or never married but are separated. These decisions can affect or jeopardize the breastfeeding relationship. In some cases, breastfeeding is raised directly as an issue, such as when one claims that breastfeeding is not best for the child, or that a child is being breastfed too long. In most, the effects of inappropriate separations can result in the breastfeeding relationship being put at risk. Such separations often result from early overnights, standard every other weekend visitations, lengthy summer and holiday visitations, and joint physical custody, including rotating (week on/week off) and 50% time plans.

• Employment Situations — Mothers who want to continue breastfeeding when they return to work may encounter difficulties with their employer. Some employers may try to prevent the mother from expressing milk, or may just frustrate her efforts by making the situation very difficult. Occasionally issues arise concerning whether a breastfeeding mother can extend her maternity leave or cannot work because the baby won’t take a bottle. More and more states are either encouraging or mandating that employers accommodate breastfeeding mothers when they return to work.    Breastfeeding in Public Cases — These situations are where a mother is told to stop breastfeeding in public, is asked to leave an establishment for breastfeeding, or is told to breastfeed only in a certain place. Over twenty states have enacted legislation clarifying that women do have the right to breastfeed, and some of those states have provided for fines and penalties for violating these laws.

• Social Service Agency and Criminal Cases — These types of cases arise either when a breastfeeding mother is accused of abuse/neglect or a crime unrelated to breastfeeding (but where separations can jeopardize the breastfeeding relationship), or where breastfeeding is raised directly as an issue. Some issues dealt with by the criminal and social service agencies are failure to thrive, ingesting illegal substances while breastfeeding, or even mistaken perceptions regarding extended breastfeeding.

• Other: Jury Duty, Civil Cases — Breastfeeding issues can arise in other types of cases, such as when a breastfeeding mother is called for jury duty, or involved in an accident which results or contributes to breastfeeding ending. Breastfeeding is a significant health choice for both mother and baby, and this is becoming recognized by the legal system.

This page lists some basic information on breastfeeding and the law (with the main focus on the United States). The author, Elizabeth N. Baldwin, is an attorney and family mediator in private practice with her husband, Kenneth A. Friedman, in Miami, Florida. Her family law practice primarily focuses on protecting young, securely attached and breastfed babies in divorce cases. Elizabeth is also a La Leche League Leader, and a member of LLLI's Professional Advisory Board, Legal Advisory Council. She has published numerous articles on breastfeeding and the law, and often speaks at conferences. She has assisted hundreds of parents involved in breastfeeding legal cases, and provides information and help to parents, attorneys and other professionals dealing with these issues.