Meghan Boone 0
0 Thi s Article si brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information , please contact , USA
Follow this and additional works at: https://scholarship.law.berkele y.edu/californialawreview Recommended Citation
Over the last twenty years, state legislatures have passed a
number of laws designed to support and encourage breastfeeding,
including laws that protect public breastfeeding and lactating
employees in the workplace. Both sides of the political aisle cheered
the passage of these laws, and more recent federal laws, as an
unqualified positive for women, families, and public health. This
Article argues that such unbridled enthusiasm may be unwarranted.
While the legal rights of women in the reproductive process have
been extensively theorized through the lens of abortion and
contraception, considerably less attention has been paid to the
question of how the law should approach the rights of lactating
women. Courts have generally been unwilling to envision lactation
rights as encompassed within existing antidiscrimination or
accommodation frameworks. Consequently, modern statutes that
specifically address lactation fill a void in the law. This Article turns
a critical eye on such laws by exploring the ways that they are
underinclusive?leaving without protection individuals that the state
should protect as a normative matter?and the ways they reinforce the
assumed naturalness and primacy of the maternal experience and the
Copyright ? 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of their
* Assistant Professor, Hugh F. Culverhouse, Jr. School of Law, The University of Alabama.
The author presented versions of this Article at the Family Law Scholars and Teachers Conference, the
Mid-Atlantic Junior Faculty Forum at University of Richmond School of Law, the Southeastern
Association of Law Schools New Scholar Workshop, and at North Carolina Central University School
of Law as part of a junior faculty exchange. She would like to thank the participants of those workshops
for their helpful critiques, comments, and questions. The author would also like to thank Jonathan Cardi,
Kami Chavis, Christine Coughlin, Maxine Eichner, Andrea Freeman, Russell Gold, Michael Green,
Marcia McCormick, Rebecca Morrow, Wendy Parker, Wilson Parker, Dara Purvis, Sid Shapiro,
Margaret Taylor, Andrew Verstein, Robin West, and Ron Wright for their role in shepherding this
project to its completion. She would also like to thank Caitlin Bush and Colin Hayton for their excellent
desirability of traditional family structures. Thus, while lactation laws
respond to a real need, they do so at the expense of reinforcing
traditional notions of gender, motherhood, and family.
This Article focuses on three main critiques of modern lactation
laws. First, these laws often frame the rights involved as the right of
an infant child to access breast milk, not as the right of a woman to
lactate. Break time laws, for instance, often mandate that any milk
expressed during a break be ?for [the woman?s] infant child.? This
language conditions a woman?s right to lactate on the eventual benefit
to her child and does not protect her rights as an individual actor with
potentially separate interests. Second, modern lactation laws often
condition legal protections for lactating women on women?s
adherence to traditionally feminine, and maternal, gender norms. For
example, both Missouri and North Dakota protect public breastfeeding
only when it?s done with ?discretion? or ?modesty.? Finally, lactation
laws restrict the access of nontraditional families to the benefits of
breastfeeding and breast milk by limiting the language of the statutes
to protect only certain types of lactation. This limitation leaves many
lesbian and gay parents, socioeconomically disadvantaged families,
and adoptive parents without an economically viable or legally
protected way to provide breast milk to their children. These common
characteristics of modern lactation laws work in concert with one
another to encourage or even require women and families to adhere
to traditional roles and structures. This Article concludes by exploring
how legislatures could draft new lactation laws that meet the stated
public health goals of the current laws while avoiding the negative
discursive effects and distributional consequences identified.
In 2010, Amy Anderson, a substitute teacher in Maine, gave birth to a
stillborn baby.1 Within days, her body began automatically producing breast
milk.2 Unsure what to do, Ms. Anderson sought advice online, where she
discovered that her breast milk could help other babies, particularly those with
health problems or born prematurely.3 Despite her grief, Ms. Anderson was
inspired by the idea that she could help other babies, so she began to pump and
donate her breast milk to nonprofit milk banks.4 The school administrators where
Ms. Anderson worked, however, informed her that she was not entitled to unpaid
breaks or a private place to express breast milk during the work day. Even though
other recently pregnant teachers in her school were entitled to these benefits, the
school maintained that Ms. Anderson was not?because her baby was dead.5
Maine law specified that an employee was entitled to breaks only ?to express
breast milk for her nursing child.?6 The law did not protect Ms. Anderson
because she was expressing breast milk to process her grief, help other needy
infants, and honor her stillborn baby?not to directly benefit her own nursing
Ms. Anderson?s story is not an anomaly. In fact, most state and federal laws
that address the rights of lactating women7 often explicitly exclude women like
1. See Katie Muse, Mother Donates 92 Gallons of Breast Milk in Honor of Stillborn Son, FOX
2 DETROIT (Dec. 10, 2015), http://www.fox2detroit.com/health/56838996-story
2. See Julie Evans, Grieving Mom Gives Gift of Breast Milk After Stillbirth, SHEKNOWS (Oct.
6. ME. REV. STAT. tit. 26, ? 604 (2009).
7. My use of the words ?woman? and ?women? throughout this piece are intended to include
transgender women, who may wish to induce lactation for a variety of reasons, and transgender men
who choose to breastfeed (or ?chestfeed? as some members of the transgender community prefer).
Although not the focus of this Article, the unique challenges of the transgender population with regards
to legal protection for breastfeeding should not be overlooked. Due to the relative rarity of transgender
men breastfeeding and the stigmas associated with transgender people and breastfeeding, transgender
men face unique challenges when deciding to breastfeed, including a lack of scientific knowledge and
medical support, community support and acceptance, and legal protection, plus a possibility of personal
confusion in terms of gender identity. See Trevor MacDonald et al., Transmasculine Individuals?
Experiences with Lactation, Chestfeeding, and Gender Identity: A Qualitative Study, BMC PREGNANCY
& CHILDBIRTH, May 16, 2016, at 15?16; Emily Wolfe-Roubatis & Diane L. Spatz, Transgender Men
and Lactation: What Nurses Need to Know, 40 MCN AM. J. MATERNAL/CHILD NURSING,
January/February 2015, at 32. Trans-women face unique problems as well. Typically, they must induce
lactation through the use of medications. Very little scientific research has been done, however, to
investigate the interaction between hormone treatment and the medications needed to induce lactation,
so often this may be done at a risk. See Lindsey Bever, How a Transgender Woman Breast-fed Her
Baby, WASH. POST (Feb. 15, 2018),
[https://perma.cc/DJ9Q-SHGY]. Also, trans-women often lack support from the medical community
and the media, and as a result have a much harder time finding medical personnel willing to help. This
Ms. Anderson and other women who are lactating in a ?non-traditional? manner.
Despite the sustained government interest in increasing breastfeeding rates as a
matter of public health over the last several decades,8 most state and federal laws
aimed at doing so protect only certain breastfeeding women and only certain
types of lactation. Why might this be?
Laws that explicitly discriminate on the basis of sex or rely on outdated
ideas regarding the supposedly fundamental nature of sex differences are
comparatively rare today. The dearth of laws that contain explicitly gendered
standards, however, does not mean that the law is free of deeply engrained,
traditional ideas surrounding gender. Law still can, and does, create ?more
subtle?9 reaffirmations of the gendered ways that society values women and
promotes their adherence to traditional social roles. Laws that incorporate
gendered norms perpetuate those norms, and those norms are strengthened, in
turn, by the presence of laws which rely on them.10
This Article explores one example of subtly gendered law: lactation law.
State and federal laws protect breastfeeding and lactation in a number of different
contexts, including the workplace, the jury box, and the public square. The
passage of lactation laws11 has been applauded by many feminist organizations
as unquestionable progress in the fight for women?s equality. This Article
explores the idea that although laws that seek to support breastfeeding are a
positive step for women, both the conceptual framework of these laws, as well
as the text of the legislation, are deeply problematic from a feminist perspective.
Modern lactation laws are not designed to protect, and in fact do not protect, all
lactating women or all lactation. Instead, they protect only lactation that
comports with our societal expectation of appropriate motherhood?an idealized
works along with the common prejudice against trans-women, which can be exacerbated by
breastfeeding efforts. See Trevor MacDonald, Transgender Parents and Chest/Breastfeeding,
KELLYMOM (Dec. 19, 2016),
8. See, e.g., CTRS. FOR DISEASE CONTROL & PREVENTION, BREASTFEEDING (Mar. 21, 2018),
https://www.cdc.gov/breastfeeding/policy/ [https://perma.cc/V424-WQLS] (detailing the federal
government?s actions relating to breastfeeding since 1984).
9. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
10. Naomi Mezey & Cornelia T. L. Pillard, Against the New Maternalism, 18 MICH. J. GENDER
& L. 229, 236 (
) (?The cultural and the legal are not easily distinguishable from each other, nor
does their influence move primarily in one direction. Rather, law and culture mutually constitute each
11. There is a distinction to be made between breastfeeding, which is the physical act of feeding
a child directly from the breast, and lactation, which is the formation and secretion of milk by the breast
and is (most often) a physiological response to a recent pregnancy and/or birth. The laws discussed in
this Article address both breastfeeding and lactation in different contexts, but for ease of description I
am referring to the laws generally as ?lactation laws.? Although not the focus of this project, there are
interesting arguments regarding the desirability of laws which encourage or enable the use of breast
pumps to express breast milk at the expense of laws which directly support or enable breastfeeding. See
Judith Galtry, Extending the ?Bright Line?: Feminism, Breastfeeding, and the Workplace in the United
States, 14 GENDER & SOC?Y 295, 304 (2000) (discussing the potential drawbacks of focusing on breast
milk expression as part of breastfeeding policy).
motherhood that is inextricably intertwined with race, class, and gender
expectations and norms. They thus harm, first, an identifiable group of
nonconforming women and, more generally, all women, by further entrenching
deeply held stereotypes.12
This Article grows out of a modern strand of feminist legal scholarship that
challenges and problematizes the resurgence of policies and laws that make the
rights and benefits afforded to women dependent on their fulfillment of
traditional maternal roles.13 As this Article explores, though this maternalist
strategy may result in immediate benefits to women by increasing their political
power or providing additional legal protection, it risks undermining women?s
equality in the long-term by defining women primarily through their
reproductive and caregiving roles. Further, it risks placing the benefits of
maternalist laws outside the reach of women who cannot meet the cultural
expectation of an idealized white, middle-class, stay-at-home mother.
Part I describes how courts have struggled to analyze the claims of lactating
women under various existing frameworks. Part II describes modern lactation
laws, focusing on the development over the last twenty-five years of two major
areas of lactation rights?workplace accommodation laws and legal protections
for public breastfeeding. Part III discusses how these modern lactation laws,
despite addressing the need for breastfeeding protection, are problematic. First,
these laws often frame the rights involved as those of an infant child to breast
milk, not a woman?s right to breastfeed and lactate. This conditions a woman?s
rights on the rights of her child and curtails her ability to make choices based on
her own interests. Second, modern lactation laws condition legal protections for
lactating women on a woman?s adherence to traditionally feminine and
appropriately maternal gender norms. Finally, the laws restrict the access of
nontraditional families to the benefits of breastfeeding and breast milk by limiting
their protection to only certain types of lactation. Part IV describes my proposal
for new lactation laws that would protect breastfeeding and lactating women
while avoiding reliance on outdated stereotypes regarding women?s maternal
role. In the Conclusion, I discuss how the problems inherent in developing laws
that protect breastfeeding are reflective of larger feminist legal discussions and
also serve as a potential model for successfully legislating in the face of real
LACTATION RIGHTS AND THE COURTS
Before turning to the focus of this project?modern statutory lactation
law?it is important to first address why lactation laws are necessary despite the
myriad laws that already address issues of sex, pregnancy, disability, and family
responsibility. Although existing laws provide protection for women at various
points along the reproductive timeline, courts have been generally unwilling to
interpret existing law to cover claims relating to breastfeeding.14 The following
brief history of lactation claims shows that, absent the statutes discussed in the
next Section, lactating plaintiffs would have insufficient legal protection.
Historically, laws prohibiting sex discrimination have been unavailing to
women claiming legal protection for breastfeeding and lactation.15 Courts have
struggled with how to handle lactation in a traditional sex-equality framework
because there is?almost by definition?no male comparator16 and because there
is a perceived element of ?choice? regarding breastfeeding that is generally not
apparent in other areas of accommodation law, like disability.17 This notion of
14. See generally Marian Kousaie, From Nipples to Powder, 49 AKRON L. REV. 207, 230
) (observing that courts have been unreceptive to arguments for granting expansive protection of
lactating women based on the Constitution, Americans with Disabilities Act, Family and Medical Leave
Act, or Pregnancy Discrimination Act).
15. See Marcia L. McCormick, Gender, Family, and Work, 30 HOFSTRA LAB. & EMP. L.J. 309,
331 (2013) (?Women and men are not necessarily similarly situated physically or socially when it comes
to issues surrounding pregnancy, birth, or caring for a newborn. Thus, it is probably not a surprise that
the laws that prohibit sex discrimination have not necessarily been considered to address discrimination
against breastfeeding mothers or to require accommodation of breastfeeding.?); L. Camille H?bert, The
Causal Relationship of Sex, Pregnancy, Lactation, and Breastfeeding and the Meaning of ?Because
of . . . Sex? Under Title VII, 12 GEO. J. GENDER & L. 119, 119 (
) (?[T]here has been active
resistance by some members [of the legal community] to the notion that action taken against women
because of lactation, breastfeeding, or expressing milk, particularly in the context of the workplace,
violates prohibitions against discrimination on the basis of sex or gender.?); Derungs v. Wal-Mart Stores,
Inc., 374 F.3d 428, 430 (6th Cir. 2004) (finding that ?under the . . . Ohio Public Accommodation statute,
restrictions on breast-feeding do not amount to discrimination based on sex . . . .?).
16. See Suzanne B. Goldberg, Discrimination by Comparison, 120 YALE L.J. 728, 762 (
(?Sex discrimination challenges that have been brought related to breastfeeding rules have fared about
as well as those in Geduldig and Gilbert, with courts finding that the absence of a comparator for
breastfeeding women rendered it unreasonable to see the rules as discriminatory based on sex.?); Galtry,
supra note 11, at 301 (discussing how US courts viewed breastfeeding claims within a paradigm of
liberal thought with the corresponding emphasis on ?commonality and ?sameness? as a prerequisite to
equality?); see also Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305, 310 (S.D.N.Y. 1999) (?[Sex plus
discrimination] cannot be for the quite simple reason that men are physiologically incapable of pumping
breast milk, so plaintiff cannot show that she was treated less favorably than similarly situated men.?);
Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990), aff?d, 951 F.2d 351 (6th Cir. 1991)
(?While breast-feeding, like pregnancy, is a uniquely female attribute, excluding breast-feeding from
those circumstances for which [the employer] will grant personal leave is not impermissible
genderbased discrimination, under the principles set forth in Gilbert.?).
17. See Trial Order at 7, Allen v. Totes/Isotoner Corp., No. CV06 03 0917, 2007 WL 5843192,
(Ohio Com. Pl. July 31, 2007) (?Pregnant women who give birth and chose not to breastfeed or pump
their breasts do not continue to lactate for five months. Thus, Allen?s condition of lactating was not a
condition relating to pregnancy but rather a condition relating to breastfeeding. Breastfeeding
discrimination does not constitute gender discrimination.?); see also LINDA M. BLUM, AT THE BREAST
?choice? is perhaps even more powerful in the breastfeeding context than in the
pregnancy context, as not all post-partum women choose to breastfeed and
because, unlike in the pregnancy context, the species will be able to successfully
replicate itself even absent breastfeeding. Thus, as compared to pregnancy, the
arguments regarding the necessity of breastfeeding are less compelling.18
Like claims for sex discrimination generally, specific pregnancy
discrimination claims under the Pregnancy Discrimination Act (PDA) have also
historically failed to protect breastfeeding plaintiffs.19 Courts have struggled to
define the scope of pregnancy-related conditions covered by the PDA.20 The
courts? treatment of lactation claims is a prime example of this struggle. Most
courts have found that lactation is not a ?related medical condition?21 within
the meaning of the PDA.22 A district court in Iowa even noted that
lactationbased pregnancy discrimination claims are not cognizable because it is
physically possible for men, too, to lactate.23 Recently, however, the United
6?7 (1999) (noting that in comparison to feminist legal scholars? explorations of laws surrounding
pregnancy and birth, less attention has been paid to breastfeeding ?because it seems a more optional
aspect of motherhood.?).
18. See Galtry, supra note 11, at 300 (?By contrast, breastfeeding, while like pregnancy, a potent
and visible manifestation of sex-specific difference or otherness in the marketplace, was neither an
inevitable aspect of the process of metamorphosis to motherhood nor seen as necessary in most instances
to infant survival, at least within industrialized nations.?).
19. See Kousaie, supra note 14, at 234; H?bert, supra note 15, at 120.
20. See generally Joanna L. Grossman, Expanding the Core: Pregnancy Discrimination Law as
it Approaches Full Term, 52 IDAHO L. REV. 825 (
) (discussing how courts have had to grapple with
whether claims relating to contraception, infertility, and lactation are covered by existing pregnancy
21. Pregnancy Discrimination Act, 42 U.S.C.A. ? 2000e(k) (stating that ?[t]he terms ?because
of sex? or ?on the basis of sex? include, but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related purposes, including receipt of
benefits under fringe benefit programs, as other persons not so affected but similar in their ability or
inability to work?).
22. See Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990), aff?d, 951 F.2d
351 (6th Cir. 1991) (?We believe these factors indicate Congress? intent that ?related medical conditions?
be limited to incapacitating conditions for which medical care or treatment is usual and normal. Neither
breast-feeding and weaning, nor difficulties arising therefrom, constitute such conditions.?); see also
Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305, 309 (S.D.N.Y. 1999) (stating that ?[t]he drawing of
distinctions among persons of one gender on the basis of criteria that are immaterial to the other, while
in given cases perhaps deplorable, is not the sort of behavior covered by Title VII? and that this principle
has been applied to breastfeeding cases, and implying that it is applicable to the case at hand); Fejes v.
Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491?92 (D. Colo. 1997) (?Based on the language of the PDA,
its legislative history, and decisions from other courts interpreting the Act, I hold that breast-feeding or
childrearing are not conditions within the scope of the PDA.?); McNill v. N.Y.C. Dep?t of Corr., 950 F.
Supp. 564, 569 (S.D.N.Y. 1996) (finding plaintiff?s absence from work to breastfeed her child was not
within the scope of the PDA).
23. Ames v. Nationwide Mut. Ins. Co., No. 4:11-cv-00359, 2012 WL 12861597, at *6 n.28
(S.D. Iowa Oct. 16, 2012), aff?d, 747 F.3d 509 (8th Cir. 2014), opinion withdrawn on reh?g, 760 F.3d
763 (8th Cir. 2014), aff?d, 760 F.3d 763 (8th Cir. 2015) (?Furthermore, it is a scientific fact that even
men have milk ducts and the hormones responsible for milk production. Accordingly, lactation is not a
physiological condition experienced exclusively by women who have recently given birth.?) (internal
citations omitted). Although it is true that men, in exceptional circumstances, can sometimes be induced
States Court of Appeals for the Fifth Circuit found the opposite, concluding that
lactation is a related medical condition under the PDA because ?[i]t is
undisputed . . . that lactation is a physiological result of being pregnant and
bearing a child.?24 In the aftermath of this ruling, other courts have followed the
example of the Fifth Circuit and have characterized lactation as a
pregnancyrelated medical condition.25 It is still unclear, however, whether this
contemporary approach will become the majority position.26
Sex and pregnancy discrimination claims are also imperfect vehicles for
lactation rights claims in part because they are designed to prevent discrimination
based on an identity (i.e., a woman or a pregnant person) not necessarily to
provide an affirmative accommodation for a particular action (i.e., the need for
break time at work to express milk). Although antidiscrimination frameworks
are designed to deal with the former, they are less helpful when the claim is based
not only on the identity of the claimant, but also on her actions.27
Plaintiffs attempting to use the Americans with Disabilities Act (ADA) to
secure lactation rights have likewise had limited success.28 Courts generally have
been unwilling to extend ADA protections to pregnancy-related conditions,
unless physiological impairments are experienced in conjunction with, or as a
result of, pregnancy.29 Courts have interpreted the ADA to require the ?abnormal
functioning of the body or a tissue or organ?30 and have thus exempted lactation
because women?s bodies are ?supposed? to lactate. As one court noted, it is
?simply preposterous to contend a woman?s body is functioning abnormally
because she is lactating.?31
Perhaps the most expansive judicial interpretation of lactation rights came
in the 1981 case Dike v. School Board of Orange County, which concluded that
?[i]n light of the spectrum of interests that the Supreme Court has held specially
protected . . . the Constitution protects from excessive state interference a
woman?s decision respecting breastfeeding her child.?32 After articulating a right
to make breastfeeding decisions, however, the court remanded the case to the
district court to decide whether the defendant?s refusal to let the plaintiff
schoolteacher breastfeed her child while on her off-duty lunch breaks
?further[ed] sufficiently important state interests and [were] closely tailored to
effectuate only those interests.?33 Subsequent attempts to use Dike to argue for
the right to breastfeed in the face of contrary state interests have been mostly
The failure to obtain protection for breastfeeding through existing legal
frameworks spurred advocacy for the specific statutory protections for
breastfeeding that are the focus of the next Section.
MODERN LACTATION LAWS
There has been an enormous resurgence of breastfeeding in the United
States. In 1970, the percentage of infants breastfed at one week postpartum
dipped to an all-time low of 25 percent. In 2000, that percentage had climbed to
70.3 percent of infants breastfed at birth and 34.5 percent of infants still breastfed
at six months. In the most recent data available, those numbers have jumped to
81.1 percent and 51.8 percent, respectively.35 This renewed interest in
breastfeeding has been sparked in part by scientific evidence that babies fed
breast milk perform better on many indicators of health36 throughout infancy and
As a result of this renewed interest in breastfeeding, and beginning in the
mid-1990s,38 state legislatures considered, and generally adopted, new laws
designed to afford breastfeeding women legal protections that they did not
previously enjoy.39 The two most common types of lactation laws are those that
encourage or require employers to accommodate lactating employees and those
that protect public breastfeeding. While addressing two different issues, both
types of laws are aimed at dismantling common roadblocks to breastfeeding, as
reported by women.40 Although there has been some limited federal legislation
concerning breastfeeding, there is no comprehensive or robust federal statutory
scheme addressing lactation rights. Lactation laws are thus mostly state laws.41
Evidence suggests that state laws have been moderately successful in
encouraging the initiation and continuation of breastfeeding.42 Studies show the
36. Breastfeeding is associated with numerous health benefits for children, including reduced
risk of childhood cancer, asthma, Crohn?s disease, ulcerative colitis, and measles; better cognitive and
motor development; and decreased risk of obesity during childhood and adolescence. See Sevin
Altinkaynak et al., Breast-feeding Duration and Childhood Acute Leukemia and Lymphomas in a
Sample of Turkish Children, 42 J. PEDIATRIC GASTROENTEROLOGY & NUTRITION 568, 570 (2006); A.
Silfverdal et al., Breast-feeding and a Subsequent Diagnosis of Measles, 98 ACTA PAEDIATRICA 715,
716 (2009); Sandrine P?neau et al., Breastfeeding, Early Nutrition, and Adult Body Fat, 164 J.
PEDIATRICS 1363, 1366 (2014); Matthew W. Gillman et al., Risk of Overweight Among Adolescents
Who Were Breastfed as Infants, 285 J. AM. MED. ASS?N 2461, 2465 (2001); Xu et al., Systematic Review
with Meta-Analysis: Breastfeeding and the Risk of Crohn?s Disease and Ulcerative Colitis, 46
ALIMENTARY PHARMACOLOGY & THERAPEUTICS 780, 785 (
37. There is legitimate debate regarding the extent to which the health benefits of breastfeeding
to both infants and women has been overstated. See generally SUZANNE BARSTON, BOTTLED UP: HOW
THE WAY WE FEED BABIES HAS COME TO DEFINE MOTHERHOOD, AND WHY IT SHOULDN?T (
The purpose of this project is not to weigh in on the debate regarding whether or not the health benefits
of breastfeeding and lactation are as compelling as initially reported, but only to discuss the laws that
protect lactation. Even those that dispute that breastfeeding is a ?magic bullet? for infant health generally
recognize that breastfeeding results in at least modest benefits to women and children and that, regardless
of the presence or absence of health benefits, women should have the choice to breastfeed if they wish.
38. Florida was the first state to enact comprehensive breastfeeding legislation. See, e.g.? FLA.
STAT. ? 383.015 (
) (first enacted as legislation in 1993). Florida?s breastfeeding statutes have thus
served as an informal model for other state lactation laws. See DOUGLAS REID WEIMER, CONG. RES.
SERV., SUMMARY OF STATE BREASTFEEDING LAWS AND RELATED ISSUES 2 (2009).
39. KAREN M. KEDROWSKI & MICHAEL E. LIPSCOMB, BREASTFEEDING RIGHTS IN THE
UNITED STATES 90 (2008) (noting that the earliest state laws regarding breastfeeding appeared in 1970,
while the current trend of state breastfeeding laws began in 1993 and continued into the 2000s).
40. See Patrick Sullivan, Breast-feeding Still Faces Many Roadblocks, National Survey Finds,
154 CAN. MED. ASS?N J. 1569 (1996) (discussing women?s feelings of embarrassment and constraint as
a result of breastfeeding).
41. KEDROWSKI & LIPSCOMB, supra note 39, at 89.
42. See Summer Sherburne Hawkins et al., Do State Breastfeeding Laws in the US Promote
Breastfeeding?, 67 J. EPIDEMIOL COMMUNITY HEALTH 250, 252?53 (2014) (concluding that state laws
that promote breastfeeding through workplace break time provisions and public breastfeeding
protections increase breastfeeding rates); see also Lindsey Murtagh & Anthony D. Moulton, Working
Mothers, Breastfeeding, and the Law, 101 AM. J. PUB. HEALTH 217, 222 (
) (noting that the laws
appropriately target an issue (employment outside the home) that negatively affects the duration of
breastfeeding); Michael D. Kogan et al., Multivariate Analysis of State Variation in Breastfeeding Rates
particular effectiveness of state lactation laws in increasing rates of breastfeeding
initiation and duration among Black and Hispanic mothers, and women with less
education, both groups with generally lower rates of breastfeeding.43 This
suggests that protective laws are most crucial for otherwise vulnerable groups.
Interestingly, many states? lactation laws were passed during a single
legislative session as part of a comprehensive statutory scheme addressing
multiple aspects of lactation rights. For instance, the District of Columbia?s
breastfeeding law includes both an affirmative right to breastfeed in public as an
exception to the otherwise applicable public indecency statutes, and a
requirement for workplace accommodations.44 Sixteen other states have also
enacted multiple types of lactation laws, either as part of the same legislation or
during the same legislative year.45 This type of comprehensive, packaged
legislation may help to explain why the language of state lactation laws is
relatively homogenous, as discussed below.
A. Workplace Accommodations
For most women in the United States, including women with young
children, paid work outside the home is a necessity. In 2011, 55.8 percent of
women with infants younger than one-year old participated in the paid
workforce.46 Most women go back to work within a few months of giving birth,
and some do so considerably earlier.47 Balancing work with motherhood is a
perennial challenge, and women who wish to breastfeed face additional
challenges in the workplace.48 Maintaining adequate milk supply while separated
from an infant, accessing a private place and the break time necessary to express
milk, storing milk safely until the end of the workday, and overcoming any
embarrassment or discomfort in order to speak with supervisors about their
needs, all can prevent lactating women from successfully continuing to
breastfeed after returning to work.49 And even common breastfeeding issues
unrelated to employment, such as leaking, blocked ducts, or infection may be
exacerbated by the demands of the workplace.50 Because of these challenges,
women who work full time are considerably less likely to breastfeed six months
after the birth of a child.51 Women frequently attribute early weaning to
unsupportive work environments.52 In fact, in the month she returns to work, a
mother is 2.18 times more likely to quit breastfeeding than her nonworking
These challenges are especially acute for women whose work is lower paid,
offers less flexibility, and affords them less control over their workspace and
schedule. As a result, women in jobs classified as lower-skill, such as clerical
and service jobs, report shorter breastfeeding durations.54 This decrease in
breastfeeding rates for working women in non-professional positions parallels
the lower breastfeeding rates among younger women and women of color, as
well as those who are unmarried or have less formal education.55 Women in
professional jobs generally have more autonomy at work, which allows them to
structure their work time to accommodate the need to express breast milk more
easily.56 Even for professional women, however, identifiable and concrete
challenges to breastfeeding exist once back at work.
Twenty states currently have laws that require some or all employers to
offer employees break time or a private location to express milk, or both.57 Seven
additional states have laws that encourage employers to provide these type of
workplace accommodations.58 State laws mandating or encouraging employers
to provide lactating women workplace accommodations generally follow the
same basic pattern. The laws either dictate, or allow at an employer?s discretion,
that employees be provided with a ?reasonable? amount of unpaid break time to
express breast milk during the workday and a private place to do so, generally
not a bathroom.59 The laws thus attempt to address the two most cited barriers to
continuation of breastfeeding once back at work?a lack of privacy and adequate
time to express milk while at work.60 Some state laws include language about
what locations are acceptable for the expression of breast milk, while others
leave this determination to employers. A typical example is Georgia?s statute,
An employer may provide reasonable unpaid break time each day to an
employee who needs to express breast milk for her infant child. The
employer may make reasonable efforts to provide a room or other
location (in close proximity to the work area), other than a toilet stall,
where the employee can express her milk in privacy. The break time
shall, if possible, run concurrently with any break time already provided
to the employee. An employer is not required to provide break time
under this Code section if to do so would unduly disrupt the operations
of the employer.61
Many state laws mirror this Georgia law by exempting employers from the law?s
mandate if providing accommodations to lactating employees would create
undue burden or hardship on the employer.
As part of the passage of the Patient Protection and Affordable Care Act in
2010, the Fair Labor Standards Act (FLSA) was amended to provide workplace
lactation breaks to some employees. This federal law follows the same basic
format of similar state laws. The law requires employers to provide:
(2007); OR. REV. STAT. ? 653.077 (2007); TENN. CODE ANN. ? 50-1-305 (1999); TEX. GOV?T CODE
ANN. ? 619.002 et seq. (
); UTAH CODE ANN. ? 34-49-202 (
); VT. STAT. ANN. tit. 21, ? 305
(2013); VA. CODE ANN. ? 22.1-79.6 (2014).
58. CONN. GEN. STAT. ? 31-40w (2001); DEL. CODE ANN. tit. 19, ? 710-11 (1953); GA. CODE
ANN. ? 34-1-6 (1999); N.D. CENT. CODE ? 23-12-17 (2009); OKLA. STAT. tit. 40, ? 435 (2006); 23 R.I.
GEN. LAWS ? 23-13.2-1 (2008); WASH. REV. CODE ? 43.70.640 (2001).
59. See, e.g., ARK. CODE ANN. ? 11-5-116 (2009) (?An employer shall provide reasonable
unpaid break time each day to an employee who needs to express breast milk for her child in order to
maintain milk supply and comfort.?); CAL. LAB. CODE ? 1030 (2001) (?Every employer, including the
state and any political subdivision, shall provide a reasonable amount of break time to accommodate an
employee desiring to express breast milk for the employee?s infant child.?); COLO. REV. STAT. ?
8-13.5104 (2008)(?The employer shall make reasonable efforts to provide a room or other location in close
proximity to the work area, other than a toilet stall, where an employee can express breast milk in
privacy.?); CONN. GEN. STAT. ? 31-40w (2001) (same); D.C. CODE ANN. ? 2-1402.82 (2007) (?An
employer shall make reasonable efforts to provide a sanitary room or other location in close proximity
to the work area, other than a bathroom or toilet stall, where an employee can express her breast milk in
privacy and security.?).
60. Murtagh & Moulton, supra note 42.
61. GA. CODE ANN. ? 34-1-6 (1999).
[A] reasonable break time for an employee to express breast milk for
her nursing child for 1 year after the child?s birth each time such
employee has need to express the milk; and a place, other than a
bathroom, that is shielded from view and free from intrusion from
coworkers and the public, which may be used by an employee to express
FLSA leaves large portions of employees without protection, however, as it: 1)
does not cover employees otherwise exempt from the requirements of FLSA, 2)
only requires employers to provide break time to express breast milk for children
younger than one year, and 3) exempts employers with fewer than fifty
employees that demonstrate hardship.63 Further, enforcement of the protections
in FLSA have been difficult, as explained in Part III.A.
B. Public Breastfeeding Laws
States have also taken steps to protect public breastfeeding through
legislation. These laws are necessary because in the United States the female
breast is commonly sexualized, such that many Americans believe that breasts
should not be exposed in public.64 Many women avoid breastfeeding in public
due to the well-founded fear of social censure. One survey conducted in the
United States found that 37 percent of respondents believed women should
breastfeed only in private, with an additional 27 percent undecided about
whether public breastfeeding was appropriate.65 One need only take a cursory
tour through the comments posted online concerning public breastfeeding, or
review any number of news stories concerning the harassment women face when
breastfeeding in public, to confirm that there are many individuals who firmly
believe that breastfeeding should only occur in private and that they are within
their rights to insist that other people conform to that expectation.66 Even women
62. Fair Labor Standards Act of 1938, 29 U.S.C. ? 207 (2010). Unfortunately, even with the
protections contained in state laws and in the Affordable Care Act, only 40 percent of women report
having access to reasonable break time and private space to express breast milk. See Katy B.
Kozhimannil et al., Access to Workplace Accommodations to Support Breastfeeding After Passage of
the Affordable Care Act, 26 WOMEN?S HEALTH ISSUES 6, 9 (
63. See 29 U.S.C. ? 207(r) (2010). Further, courts that have interpreted the provision have done
so narrowly. See David W. Johnston, Lactation Only in the Lactation Room, 20 No. 9 N.H. EMP. L.
LETTER 1 (
) (describing a New Hampshire case in which a court ruled that an employer did not
have to accommodate an employee?s request to either be allowed to leave the premises to breastfeed her
baby or to breastfeed her baby in the room provided for lactation breaks).
64. WAMBACH & RIORDAN, supra note 46, at 55. Conversations about the propriety of public
breastfeeding reflect a centuries-old debate about the topic. In the eighteenth and nineteenth centuries,
the clothes of the women featured nursing slits, which were designed to avoid exposing breasts. This
suggests that while women were expected to breastfeed, there was still the demand to avoid visibility
while breastfeeding. See Catriona Fisk, A Decent Mother? The Breastfeeding and Visibility Debate Is
Nothing New, CONVERSATION (Apr. 18, 2016),
65. WAMBACH & RIORDAN, supra note 46, at 55?56.
66. See, e.g., Caroline Bologna, Breastfeeding Mom Is ?Humiliated? After Being Told to Nurse
in Marshalls Bathroom Stall, HUFFINGTON POST (Sept. 14, 2015, 12:38 PM),
who believe that public breastfeeding is appropriate may be concerned that they
will be exposed while breastfeeding or will make others uncomfortable.67
Until recently, public indecency laws in many states prevented or
discouraged public breastfeeding by classifying the baring of a female breast as
http://www.huffingtonpost.com/entry/breastfeeding-mom-is-humiliated-after-being-told-to-nurse-inmarshalls-bathroom-stall_us_55f6cf2ae4b063ecbfa4c92e [https://perma.cc/P9CK-4JAU] (discussing a
mother who was required to breastfeed in the restroom, rather than a fitting room, in a Marshalls store);
Caroline Bologna, Gym Apologizes to Mom After Barring Her from Breastfeeding in Women?s Locker
Room, HUFFINGTON POST (Sept. 18, 2015, 4:27 PM),
http://www.huffingtonpost.com/entry/gymapologizes-to-mom-after-barring-her-from-breastfeeding-in-womens-lockerroom_us_55fc42cce4b00310edf6d41d [https://perma.cc/6GJU-5453] (describing an L.A. Fitness gym
employee who prohibited a mother from breastfeeding in the women?s locker room and instead allowed
her to go to the children?s bathroom or the front lobby); Dana Hedgpeth, Woman Says She Was Told to
Pump Breast Milk in Pet Area at Dulles Airport, WASH. POST, Oct. 7, 2015 (describing an incident
where an airport employee told a mother that she could breastfeed only in a ?pet relief area?); Katie
Mettler, Breast-feeding Good Moms Get Kicked Out of the ?Bad Moms? Movie, WASH. POST (Aug. 3,
[https://perma.cc/H74M-TYMB] (describing a confrontation between a mother who breastfed in the
lobby of a movie theater and a theater employee who told her to cover up or leave the theater); Texas
Mom Asked to Leave Target After Trying to Breastfeed Baby, KHOU (Oct. 10, 2016, 8:50 AM),
http://www.khou.com/news/local/texas/texas-mom-asked-to-leave-target-after-trying-to-breastfeedbaby/333231171 [https://perma.cc/5JDD-4F9R] (depicting a conflict between a mother who was
nursing in an empty fitting room at Target and an employee who prohibited her from using the fitting
room and criticized her for leaving her home with a hungry baby); Vanessa A. Simmons, Translated:
Mom Shamed for Breastfeeding in Public at a Park, NORMALIZE BREASTFEEDING (Apr. 16, 2015),
[https://perma.cc/66G5-J54Q] (discussing a man and woman yelling at a mother that she was
?irresponsible? for breastfeeding in a public park in Los Angeles); Laura Vitto, Breastfeeding Mother
Records Her Experience with Public Harassment, MASHABLE (June 15, 2016),
[https://perma.cc/JFX6-FSC9] (showing a video of a man harassing and screaming at a mother for
breastfeeding in the caf? area of a Target store); Wendy Wisner, The Time I Was Shamed for
Breastfeeding in Public, ROLE REBOOT (Aug. 5, 2015),
http://www.rolereboot.org/family/details/201508-the-time-i-was-shamed-for-breastfeeding-in-public/ [https://perma.cc/8BRP-U4WZ] (describing an
incident where a mother was breastfeeding her six-month-old baby in a booth in a Subway restaurant
when an employee told her that she was committing indecent exposure and sent her to the restroom).
67. See SURGEON GENERAL?S CALL TO ACTION, supra note 49, at 13 (noting that
embarrassment remains a barrier to women breastfeeding); see also HEALTHY CAROLINA,
CHALLENGES BREASTFEEDING MOTHERS FACE AND STRATEGIES THAT WORK 1,
Although there is growing support for women breastfeeding in public, many mothers
nevertheless worry that their breasts will be exposed while breastfeeding of [sic] pumping,
and do not want to make other people uncomfortable. Mothers who return to work may be
embarrassed to speak with supervisors about their needs, and worry about what their
colleagues might say.
indecent exposure.68 Although arrests were rare, they did sometimes occur.69
Partly in response to the concern that women breastfeeding in public could be
subject to criminal sanction, twenty-nine states enacted exceptions to public
indecency laws for public breastfeeding.70 For example, a Florida public
indecency law stipulates that a mother?s breastfeeding does not, under any
circumstance, constitute a ?lascivious act.?71
Additionally, the vast majority of states?forty-seven?have affirmatively
written the right to publicly breastfeed into state law.72 These statutes often
simply state that a woman is permitted to breastfeed her child anywhere she is
otherwise lawfully allowed to be. For instance, Vermont?s Fair Housing and
Public Accommodations Act provides: ?Notwithstanding any other provision of
law, a mother may breastfeed her child in any place of public accommodation in
which the mother and child would otherwise have a legal right to be.?73 While
there is no federal law that provides for a right to breastfeed in public generally,
federal law does provide that ?a woman may breastfeed her child at any location
in a Federal building or on Federal property, if the woman and her child are
otherwise authorized to be present at the location.?74
State laws also sometimes incorporate an antidiscrimination approach to
public breastfeeding. Hawaii?s public breastfeeding law, for example, states that,
?[i]t is a discriminatory practice to deny, or attempt to deny, the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodations to a woman because she
is breastfeeding a child.?75
C. Other Lactation Laws
In addition to enacting laws that encourage employers to provide workplace
accommodations for lactating employees and that protect the right to publicly
breastfeed, states have also passed other types of legislation that encourage or
regulate breastfeeding. For instance, fifteen states have laws that allow
breastfeeding women to defer jury service.76 The Kansas law excuses ?a mother
NEB. REV. STAT. ? 20-170 (
); NEV. REV. STAT. ? 201.232 (1995); N.J. STAT. ANN. ? 26:4B-4
(West 1997); N.M. STAT. ANN. ? 28-20-1 (West 1999); N.Y. CIV. RIGHTS LAW ? 79-e (1994); N.C.
GEN. STAT. ? 14-190.9 (
); N.D. CENT. CODE ? 23-12-16 (2009); OHIO REV. CODE ANN. ? 3781.55
(West 2005); OKLA. STAT. tit. 63, ? 1-234.1 (2004); OR. REV. STAT. ? 109.001 (1999); 35 PA. CONS.
STAT. ? 636.3 (
); 23 R.I. GEN. LAWS ? 23-13.5-1 (2008); S.C. CODE ANN. ? 63-5-40 (2008); S.D.
CODIFIED LAWS ? 25-5-35 (
); TENN. CODE ANN. ? 68-58-101 (
); TEX. HEALTH & SAFETY
CODE ANN. ? 165.002 (1995); UTAH CODE ANN. ? 17-15-25 (1995); VT. STAT. ANN. tit. 9, ? 4502
); VA. CODE ? 2.2-1147.1 (2002); WASH. REV. CODE ? 49.60.030 (2009); W. VA. CODE ?
16-119 (2014); WIS. STAT. ? 253.165 (
73. VT. STAT. ANN. tit. 9, ? 4502(j) (
74. 41 C.F.R. pt. 102-74, app.; Consolidated Appropriations Act of 2004, Pub. L. No. 108-199,
? 629, 118 Stat. 3, 357 (2004). With few exceptions, laws that protect public breastfeeding do not
explicitly protect the expression of breast milk outside of breastfeeding. But see MO. REV. STAT. ?
191.918 (2014) (?A municipality shall not enact an ordinance prohibiting or restricting a mother from
breast-feeding a child or expressing breast milk in a public or private location where the mother and
child are otherwise authorized to be.?).
75. HAW. REV. STAT. ? 489-21 (2000). See also D.C. CODE ? 2-1402.82 (2007) (including
breastfeeding as part of the definition of discrimination on the basis of sex, to ensure a woman?s right to
breastfeed her child in any location, public or private, where she has the right to be with her child);
MICH. COMP. LAWS ? 37.232 (2014) (prohibiting the denial of ?the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of a place of public
accommodation or public service to a woman because she is breastfeeding a child?); N.H. REV. STAT.
ANN. ? 132:10-d (1999) (noting that ?to restrict or limit the right of a mother to breast-feed her child is
76. COLO. REV. STAT. ? 13-71-119.5 (
); CONN. GEN. STAT. ? 51-217(b) (
CODE tit. 10, ? 4511 (
); HAW. REV. STAT. ? 612-6 (
); IDAHO CODE ? 2-212 (1971); KAN.
breastfeeding her child? from jury service ?until such mother is no longer
breastfeeding the child.?77
Although the majority of lactation laws focus on jury exceptions, public
decency exceptions, and workplace accommodations, there are many other less
common types of laws related to lactation. One such area of legislation includes
the rules for licensing and regulating lactation consultants, who are professional
individuals trained to assist women in preparing for lactation and dealing with
any problems that may arise while lactating.78 Other state laws have created
?baby-friendly? hospital designations, which indicate that a particular hospital
voluntarily offers breastfeeding support to women who give birth at that
hospital.79 Additionally, some states have similar laws that create special
designations for businesses that support women expressing breast milk at work
by providing areas necessary to pump, and materials required for storage.80 There
are also a limited number of state laws that regulate the collection, processing,
and storage of donated human breast milk generally,81 although many other
states specifically regulate donor breast milk banks.82 While some laws address
the sale of breast milk, the market is still mainly unregulated.83
STAT. ANN. ? 43-158 (2006); KY. REV. STAT. ? 29A.100 (2007); MISS. CODE ANN. ? 13-5-23 (2008);
MONT. CODE ANN. ? 3-15-313 (2009); OKLA. STAT. tit. 38, ? 28 (2014); OR. REV. STAT. ? 10.050
(1999); 42 PA. CONS. STAT. ? 4503 (
); S.D. CODIFIED LAWS ? 16-13-10.4 (
); UTAH CODE
ANN. ? 78B-1-109 (
); VA. CODE ANN. ? 8.01-341.1 (
). In fact, this is the only law in Idaho
that addresses breastfeeding rights at all. See IDAHO CODE ? 2-212 (1971) (?A person who is not
disqualified for jury service . . . may have jury service postponed by the court or the jury commissioner
only upon a showing of undue hardship, extreme inconvenience, or public necessity, or upon a showing
that the juror is a mother breastfeeding her child.?).
77. KAN. STAT. ANN. ? 43-158 (2006).
78. See R.I. Code ? 23-13.6-3 (West 2014); 23 R.I. GEN. LAWS ? 23-13.6-3 (2014); GA. CODE
ANN. ? 43-22A-3 (
); LA. STAT. ANN. ? 40:2213 (1999).
79. See, e.g., FLA. STAT. ? 383.016 (1994).
80. See N.D. CENT. CODE ? 23-12-17 (2009); TEX. HEALTH & SAFETY CODE ANN. ? 165.003
(1995); WASH REV. CODE ? 43.70.640 (2001).
81. See, e.g., N.Y. C.L.S. PUB. HEALTH ? 2505 (
82. See, e.g., TEX. HEALTH & SAFETY CODE ANN. ? 161.071 (2001); CAL. HEALTH & SAFETY
CODE ? 1648 (2007).
83. In addition to the legal questions that arise from the commodification of breast milk, there
are policy questions about how such a market might operate. Some common concerns within the
literature discussing breast milk commodification and the regulation of breast milk markets include the
high costs of breast milk, the potential exploitation of women, the safety of the breast milk for public
health and welfare, and the potential to help women financially. See, e.g., Linda C. Fentiman, Marketing
Mothers? Milk: The Commodification of Breastfeeding and the New Markets for Breast Milk and Infant
Formula, 10 NEV. J.L. 29, 69, 75, 66, 80 (2009) (discussing the cost per ounce of breast milk, the debate
surrounding potential commodification risks in the sale of breast milk, the health risks associated with
informal breastfeeding markets, and the payment to women for their breast milk); Sarah E. Waldeck,
Encouraging a Market in Human Milk, 11 COLUM. J. GENDER & L. 361, 398, 369 (2002) (suggesting
that the safety protocols for the distribution of breast milk used by donor milk banks could also be used
by women selling breast milk and that the potential exploitation of women as a result of selling bodily
material is an academic argument that does not help poor women in the same way that the selling of
breast milk could); Crystal Oparaeke, White Milk, Black Market: A Call for the Regulation of Human
Breast Milk over the Internet, 60 HOW. L.J. 561, 592 (
) (proposing that the government should
regulate the sale of breast milk like it regulates other bodily products to make breast milk safer to
Other types of lactation laws create regulations for medical assistance
programs and coverage related to breastfeeding supplies and related healthcare,84
boards and councils intended to improve maternity care by health
professionals,85 minimum hospital requirements and standards in terms of
maternity care,86 public health campaigns to promote and educate the public on
breastfeeding,87 and funds for the nutritional support and resource costs of
lactating women.88 Some individual states have also created protection where no
others do. For example, Louisiana has prohibited discrimination against children
?on the basis of . . . whether the child is being breastfed.?89
D. The Language of Modern Lactation Laws
The statutory language of state and federal lactation laws is relatively
homogenous, with most laws containing three common textual characteristics.
First, the laws often refer to lactating women, either solely or in conjunction with
other terms, as ?mothers? instead of as individuals, employees, or even just as
?women.?90 Of the forty-nine states with laws addressing breastfeeding, forty
include the statutory term ?mother? in place of, or in conjunction with, the term
?woman.?91 For instance, Colorado?s exception to the public indecency laws that
opposition to Texas legislation aimed at protecting women who were
breastfeeding in public because she felt it was ?important for women to be
modest while feeding their baby,? and she believed that a business owner should
retain the right to ?object to a woman who is not being modest.?192 While
Illinois?s law does not mandate wholesale discretion, it does state that ?a mother
considering whether to breastfeed her baby in a place of worship shall comport
her behavior with the norms appropriate in that place of worship.?193 This
similarly restricts a woman?s right to breastfeed on deeply gendered cultural
norms, albeit in more limited circumstances.194
The town of Springfield, Missouri passed a local ordinance in 2015 that
restricted exposure of ?the female breast below a point immediately above the
top of the areola? unless such exposure is ?necessarily incident to breast feeding
an infant.?195 Ensconced in this language is the idea that public breastfeeding
will be tolerated as long as the exposure that occurs with breastfeeding is limited
to only that which is absolutely necessary for the woman to fulfill her expected
maternal role. If a woman were to step outside of that role, even to a slight
degree, the law would not protect her.196
In the context of public expectations of modesty, as well, the lack of an
enforcement provision can undermine the right of an individual to breastfeed.
One example is the story of a woman who was lawfully breastfeeding her son in
a public area of a Texas Ronald McDonald house following a surgical procedure
192. Dan Hirschhorn, Texas Rep. Debbie Riddle Wants Breast-feeding to be ?Modest?, N.Y.
DAILY NEWS (Mar. 15, 2013, 11:10 AM),
193. 740 ILL. COMP. STAT. ANN. 137/10 (2004).
194. Religious rights are often afforded additional protections that reproductive rights are not,
even when there is not a statutory basis for such additional protections. See Meghan Boone, The
Autonomy Hierarchy, 22 TEX. J. C.L. & C.R. 1 (
) (arguing that the Supreme Court?s different
interpretations of the religious discrimination and pregnancy discrimination provisions in Title VII
reflect an underlying and deeply gendered worldview which places rights to religious autonomy above
rights to physical autonomy).
195. Free the Nipple et al. v. City of Springfield, Missouri, 153 F. Supp. 3d 1037, 1040 (W.D.
Mo. 2015) (quoting SPRINGFIELD, MO., CODE ORDINANCES ? 78?222(b)(1) (1981)).
196. Following a challenge to the Springfield Ordinance by a nonprofit organization claiming
that the law encourages ?arbitrary and discriminatory enforcement? because of the likelihood of different
perspectives on how much exposure is ?necessarily incident to breastfeeding an infant,? the ordinance
was altered to omit this language. Free the Nipple, 153 F. Supp. 3d at 1041. In addition to the due process
arguments raised in the Free the Nipple litigation, and accompanying text, a few scholars have made
arguments that such limitations on female toplessness violates the First Amendment because toplessness
is protected speech, see Elizabeth Hildebrand Matherne, The Lactating Angel or Activist? Public
Breastfeeding as Symbolic Speech, 15 MICH. J. GENDER & L. 121 (2008), or that it violates the right of
privacy because it touches on the decision of whether or not to have a child. See Carmen M. Cusack,
Boob Laws: An Analysis of Social Deviance Within Gender, Families, or the Home, 33 WOMEN?S RTS.
L. REP. 197, 211?14 (
) (?When the state penalizes women for exposing their breasts because the
women are not breastfeeding at the time, the state is impermissibly intruding into a woman?s right to not
to remove a tumor from his brain.197 The Ronald McDonald House
administration allegedly threatened to evict the family from the premises unless
they moved to a private location. Following a meeting between the family and
the administration, the Ronald McDonald house allowed the family to stay but
insisted that the young mother announce her intention to breastfeed in public
areas before doing so and breastfeed ?discreet[ly].?198 Neither of these
requirements are contained in the Texas law, which simply states that a ?mother
is entitled to breast-feed her baby in any location in which the mother is
authorized to be.?199 Without an enforcement provision in the law, however, the
family had no viable option but to abide by the extra-legal requirements of
?discretion? placed on them.
Most actions, if legal, are not subject to additional requirements that they
be performed in ways that do not offend conservative or traditional sensibilities.
Breastfeeding laws such as Missouri?s and North Dakota?s, however, codify as
law cultural expectations that women be discrete, cover up, and not make a
fuss200?never mind the difficulty in applying such an indeterminate legal
standard as ?with discretion? or ?modestly? to actual breastfeeding.201
Even the legislative history of lactation laws that do not contain explicit
requirements for modesty reveal a similar concern with encouraging
appropriately discrete maternal behavior. A state legislator and supporter of
Pennsylvania?s law exempting breastfeeding mothers from public indecency
laws described reports, in which ?people have very modestly tried to nurse their
baby in public, hardly noticeable, but some busybody reports it to some other
busybody, and these women are getting harassed.?202 Implicit in these comments
is the idea that only a ?modest? woman, who was breastfeeding in a way that is
?hardly noticeable? is worthy of protection.
Similarly, the legislative history of Arizona House Bill 2376, which
exempts breastfeeding from public indecency laws, includes a statement from a
state legislator and law enforcement officer that the law should be drafted so that
a woman who was breastfeeding in a manner ?that is not normal would be held
accountable for reckless actions.?203 He noted that ?he recognize[d] the
distinction between when a decision has to be made whether something is
indecent or not? and requested that the language of the bill should not allow
?someone who is very reckless? to ?take a case to court and cite this law as
allowing someone to do whatever they want.?204 But who decides what is ?not
normal?? And from where do these standards of normalcy come? The answer is
that they rise from our deeply engrained stereotypes regarding appropriate
In addition to the implied or stated requirements for modesty and discretion,
the text and legislative history of lactation laws is replete with references to the
?natural?206 and nurturing207 relationship between mother and child, and how
breastfeeding is an expression of this relationship.208 This type of language
conflates the physical act of lactation with our cultural assumptions about the
centrality of the maternal role in women?s lives, leading legislators to assume
that lactation only occurs because women ?know in their hearts it?s the best thing
for their babies.?209 Lactation laws thus reinforce the idea that motherhood is
?self-sacrificing? and that ?a good mother is the mother that does everything for
An additional excerpt from the legislative history of Arizona House Bill
2376 highlights the societal expectations of mothers. A speaker in support of the
law stated on the record that ?[m]others have to go about errands and tend to
203. Arizona H.B. 2376, Arizona House Committee Minutes (Feb. 15, 2006) (statement of Rep.
205. Our expectations in this regard are not only reflective of traditional notions of gender but
also reflect strong racial and class biases. See generally BLUM, supra note 17, at 147?79 (describing the
history of black women?s exploitation as wet nurses and how racism continues to subject them to
additional state surveillance as mothers).
206. N.Y. CIV. RIGHTS LAW ? 79?e (Consol. 1994) (?The legislature finally finds and declares
that the breast feeding of a baby is an important and basic act of nature which must be encouraged in the
interests of maternal and child health and family values.?).
207. P.R. LAWS ANN. tit. 24, ? 3518 (2004) (?[I]n the genuine interest of promoting family
values, our society shall encourage public acceptance of the most basic natural act between a mother
and her child.?).
208. FLA. STAT. ? 383.015 (1994) (?The breastfeeding of a baby is an important and basic act of
nurture which must be encouraged in the interests of maternal and child health and family values.?).
References to the ?natural? in breastfeeding promotion are problematic because they can simultaneously
reinforce gender roles and stereotypes about women and men?s roles in the family generally. See Jessica
Martucci & Anne Barnhill, Unintended Consequences of Invoking the ?Natural? in Breastfeeding
Promotion, PEDIATRICS, Mar. 4, 2016, at 2.
209. CONN. LABOR & PUBLIC EMPS. COMM. (Mar. 15, 2001) (transcript).
210. BARSTON, supra note 37, at 39.
other children, and no mother wants to expose herself.?211 The sheer weight of
cultural assumptions to be unpacked in this relatively short sentence is
staggering. First, mothers are referred to by their role (mother) and not as an
individual (woman, person, or citizen). This completely subsumes the woman
into her maternal role. Further, the supposition that mothers are interested
primarily in ?errands? and ?tend[ing] to other children,? assumes no other
interests outside the tasks of traditional mothering?no career, no political
involvement, no other interest in the public sphere. Finally, the presumption that
a true ?mother? would never want to intentionally ?expose? herself reinforces
the image of a mother as demure and interested primarily in making others
comfortable.212 Thus, at the same moment as the legislature exempts
breastfeeding from public indecency laws, the conversations around
breastfeeding perpetuate the idea that there is a ?right? kind of breastfeeding
woman. Breastfeeding, like much of motherhood, is a culturally constructed act,
however, and different people will assign different expectations and meanings to
it.213 Modern lactation laws?in their conception and formulation?assume the
homogeneity of the motherhood experience and seek to reinforce a particular
experience as the only valid one.214
Through the assumption of the prevalence and desirability of traditional
motherhood, modern lactation laws also implicitly reject motherhood that is
deviant from the predominant norm. For instance, public breastfeeding laws
often protect only women who are breastfeeding infants under a year or two years
old.215 While breastfeeding for longer than a year is not the cultural norm at
present in the United States, for most of human history and across cultures,
211. Arizona H.B. 2376, Arizona House Committee Minutes (Feb. 15, 2006) (statement of D.
212. Later in the testimony for the same Arizona law, another supporter noted, ?It is necessary to
be able to go to the mall, bank, or grocery shopping, and if their children are hungry, they have to feed
them.? Arizona H.B. 2376, Arizona House Committee Minutes (Feb. 15, 2006) (statement of Amy
Milliron in support of the bill). Again, the list of assumed tasks is reflective of traditional assumptions
of women?s lives and roles.
213. See Saru M. Matambanadzo, Reconstructing Pregnancy, 69 S.M.U. L. REV. 187, 190 (
(describing how biomedical essentialism ?reduces the process of pregnancy to its biological and
physiological facets, obscuring the important ways in which society and culture shape the meaning of
pregnancy and structure our experience of it,? and noting that such an experience and expectation varies
across time and culture).
214. For a general discussion of how the law encourages or requires mothers to adhere to a narrow
set of cultural expectations, see Purvis, supra note 12, at 44?53 (detailing how legal protection of
breastfeeding is only extended to breastfeeding that occurs according to a narrow cultural script).
215. S.D. CODIFIED LAWS ? 16-13-10.4 (
) (?a baby younger than one year?); COLO. REV.
STAT. ? 8-13.5-104 et seq. (2008) (?for up to two years after the child?s birth?); HAW. REV. STAT. ?
3782 (2013) (?for one year after the child?s birth?); LA. STAT. ANN. ? 17:81 (2014) (?for up to one year
following the birth of her child?); ME. REV. STAT. tit. 26, ? 604 (2009) (?for up to 3 years following
childbirth?); N.Y. LAB. LAW ? 206-c (2007) (?for up to three years following child birth?); OR. REV.
STAT. ? 653.077 (?for her child 18 months of age or younger?); UTAH CODE ANN. ? 34-49-202 (
(?for at least one year after the birth?); VT. STAT. ANN. tit. 21, ? 305 (2015) (?for three years after the
birth of a child?); VA. CODE ? 22.1-79.6 (2014) (?until the child reaches the age of one?).
breastfeeding a child past infancy was completely acceptable and expected.216
Thus, laws that offer protection solely for breastfeeding that occurs for the
culturally determined ?right? amount of time reinforce a narrow conception of
appropriate womanhood and motherhood. And limiting legal protection to
mothers who meet cultural expectations can result in devastating consequences
for mothers who do not adhere to these expectations, including the risk of
criminal prosecution217 or the termination of parental rights based on the idea
that extended breastfeeding is ?perverse.?218
Laws that protect lactating women at work also often contain deeply
traditional assumptions about women?s relationship to the world of paid work.219
Workplace lactation laws are generally framed as an imposition on the rights of
employers by requiring them to accommodate lactating women, instead of
assuming that some percentage of workers will lactate and preventing employers
from imposing on such employees? right to lactate.220 For instance, most laws
contain an exception to the requirement for an employer to provide breaks for
lactation if providing such breaks causes ?undue hardship? on the employer.221
Further, many state laws merely encourage employers to provide break times for
women, without requiring that they do so. For instance, Oklahoma law states that
?[a]n employer may provide reasonable unpaid break time each day to an
employee who needs to breast-feed or express breast milk for her child to
216. JENNIFER GRAYSON, UNLATCHED: THE EVOLUTION OF BREASTFEEDING AND THE
MAKING OF A CONTROVERSY (
217. See Simone dos Santos, Breastfeeding Mom Accused of Indecent Exposure, HUFFINGTON
POST (Dec. 14, 2011),
https://www.huffingtonpost.com/2011/12/14/simone-dossantos_n_1148455.html [https://perma.cc/42SB-8VFE] (describing an incident where a woman was
approached by security guards in a government building in the District of Columbia and told to stop
breastfeeding because it was indecent); Johanna Iwaszkowiec, Missouri Revises Breastfeeding Law to
Provide Better Protection for Mothers, ST. LOUIS BREASTFEEDING COALITION (Apr. 5, 2014)
[https://perma.cc/R4RV-32DS] (recounting story of a mother held in contempt of court for bringing her
five-month-old son to jury duty due to her nursing schedule and lack of childcare); see also Purvis, supra
note 12, at 369 (?Mothers operate within an often invisible framework of legal regulation, however, that
they ignore at their peril.?).
218. Lauri Umansky, Breastfeeding in the 1990s: The Karen Carter Case and the Politics of
Maternal Sexuality, in ?BAD? MOTHERS: THE POLITICS OF BLAME IN TWENTIETH-CENTURY AMERICA
299 (Molly Ladd-Taylor & Lauri Umansky eds., 1998) (describing the story of Karen Carter, who lost
her parental rights for a year after contacting a helpline when she felt sexually aroused while nursing her
219. See Grossman, supra note 20, at 847 (?[W]hat we see in many cases of pregnancy
discrimination is not animus towards the pregnant woman per se, but a reflection of cultural ambivalence
about pregnant women at work.?).
220. The presumption that some workers will lactate is in the spirit of a ?reconstructive
feminism? that argues for a replacement of the ?ideal [male] worker? as the assumed norm. See Joan C.
Williams, Reconstructive Feminism: Changing the Way We Talk About Gender and Work Thirty Years
After the PDA, 21 YALE J.L. & FEMINISM 79 (2009).
221. See, e.g., ARK. CODE ANN. ? 11-5-116(c) (2009) (?This section does not require an
employer to provide break time if to do so would create an undue hardship on the operations of the
maintain milk supply and comfort.?222 These laws often contain the implicit
?assumption that child-rearing should come before work for women, that the
professional world should accommodate [women], and if it can?t, then it?s
[women?s] responsibility to choose the welfare of our kids over professional or
Much of the legislative history of lactation laws also contains the
assumption that expressing breast milk at work is necessarily a woman?s second
choice to staying at home with her children. In the legislative history of the
Connecticut law providing for unpaid break time for women to express breast
milk, supporters stated that they ?believe[d] that this bill is needed for mothers
who return to work while still nursing their infants? and that ?employers should
not penalize the mothers because they return to work earlier than they would
like, either by choice or economic necessity.?224 Even the addition of ?by choice?
in the second clause of the sentence does not erase the assumption that women
are returning to work ?earlier than they would like.? Testimony in support of the
bill also includes a statement that ?[m]any of these women also work to maintain
a certain quality of life.?225 This testimony contains echoes of the outdated notion
that women only work for ?pin money? and not because they rely on paid work
for their own economic survival and for the survival of their families. The
testimony also completely fails to contemplate a woman who would choose to
work outside the home not because of financial need but because of the personal
fulfillment paid employment can bring.226
Even laws exempting lactating women from jury service can be seen as a
?mixed blessing.?227 Though allowing women the choice to defer jury service
when they are nursing is doubtless a positive option for some women, it harkens
back to the not-so-distant past when women were not permitted to serve on juries
in part because of the assumption that their frail constitution and natural
inclination toward the private sphere of home and family made them incapable
222. OKLA. STAT. tit. 40, ? 435(A) (2006).
223. BARSTON, supra note 37, at 107.
224. CONNECTICUT JOINT FAVORABLE COMMITTEE REPORT, H.B. 5656 (Apr. 2, 2001)
(including the statement of Leslie Brett, Executive Director of the Permanent Commission on the Status
225. Id. (including the statement of Dr. Gerald Calnen, Co-Chair of the American Academy of
Pediatrics Breastfeeding Medicine Committee).
226. Certainly, some women likely would prefer to have access to the maternity leave necessary
to stay home with breastfeeding children. Advocating for the choice and ability to take such leave does
not require the expectation that all women would chose it if it was available. But the assumption that all
women, or at least good mothers, would elect to stay out of the workforce is a damaging stereotype.
Julie E. Artis, Breastfeed at Your Own Risk, 8 CONTEXTS 28, 30 (2009):
The cultural imperative to breastfeed is part of the ideology of intensive mothering?it
requires the mother be the central caregiver, because only she produces milk; breastfeeding
is in line with expert advice and takes a great deal of time and commitment; and finally, the
act of breastfeeding is a way to demonstrate that the child is priceless, and that whatever the
cost, be it a loss of productivity at work or staying at home, children come first.
227. KEDROWSKI & LIPSCOMB, supra note 39, at 100.
jurors.228 In addition to allowing lactating women to defer jury service, should
states not also offer women the option of serving on a jury while nursing by
providing the necessary accommodations? Offering accommodations to
lactating women would not be particularly burdensome and would counteract
any implication that women?s role in the reproductive process is at odds with full
participation in the rights and duties of citizenship.229
Looking holistically at the history of lactation laws, it is clear that the
legislatures that considered and passed these laws were concerned with
maintaining and promoting a traditional notion of women?s maternal role.
According to researchers Karen Kedrowski and Michael Lipscomb,
Republicancontrolled state legislatures and those that had moralistic or traditionalistic
political cultures passed breastfeeding laws earlier, on average, than
Democraticcontrolled state legislatures or those that had a more individualistic political
culture.230 Thus, despite the feminist community?s embrace of state lactation
laws, it is clear that the architects of such legislation were not always influenced
by a contemporary feminist worldview. Instead, the laws were often conceived
and drafted in a manner that reinforces?and sometimes demands adherence
to?traditional notions of women and motherhood.231
Thus, modern lactation laws are not necessarily designed to protect women
but to encourage women?s adherence to their expected societal role.232 If
protection for lactating women is predicated not on the biological act of lactation
but on women?s adherence to the cultural expectations of mothers, and our
cultural expectations for mothers include narrow prescriptions for appropriately
maternal behavior,233 then ultimately our protections for breastfeeding do not
protect women or women?s choices, but only the women who adhere to societal
228. See BARSTON, supra note 37, at 115 (quoting Maureen Rand Oakley) (?As soon as you
allow that, yes, women are different so maybe policies should be different. . . . That is what was used
against women for so long. They were kept out of jury duty, they were out of all kinds of areas of life,
and the justification was always, well, they are first and foremost mothers.?).
229. Judith P. Miller, My Attempt at Jury Duty Failed?Because I?m a Nursing Mother, CHI.
TRIBUNE (Oct. 13, 2017),
http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-juryduty-breastfeeding-1015-story.html [https://perma.cc/8PK2-VZ9Q] (?Since 2006, Illinois has allowed
nursing women to be excused from jury duty. But that doesn?t help those of us who want to serve.
Motherhood and citizenship are not incompatible; Illinois courts shouldn?t treat them as if they are.?).
230. KEDROWSKI & LIPSCOMB, supra note 39, at 102?03.
231. Id. at 103 (noting the ?historical link? between breastfeeding and ?more traditional forms of
mothering,? which may have made conservative legislatures comfortable supporting breastfeeding
232. This is not the only scenario in which the law protects only individuals who conform to
certain stereotypical expectations regarding their appropriate role. Cf. Franke, supra note 174, at 1399
(arguing that Lawrence v. Texas accepts the right of same sex partners to engage in sexual conduct only
when this conduct is conducted privately and within the context of a relationship).
233. See generally Purvis, supra note 12, at 367 (describing the legal and sociocultural ?rules of
maternity?). Professor Purvis begins her article with the straightforward assertion that ?[m]otherhood is
all about judgment.? Id. at 368.
expectations of female behavior. As one Utah state senator articulated, these laws
?respect motherhood?234?not necessarily women.
C. Lactation Rights and the Family
Family structure and parenting ?is a major preoccupation in law and
culture.?235 Legal frameworks, however, have not kept pace with the evolution
of the family. Modern family structures and caregiving relationships span a
variety of types, and family-building mechanisms are varied and growing more
so with the ongoing expansion of assisted reproductive technology.236 Modern
lactation laws are an example of the law?s failure to respond to these evolving
family structures. Instead, lactation laws promote a traditional conception of
family by limiting the protection afforded to families that conform to the
traditional family model?primarily heterosexual, fertile parents of genetically
As discussed in the previous two Sections, women who are lactating for the
benefit of infants who are not their biologically related children are often
excluded from the protection of lactation laws. Consequently, the individual
rights of these women are harmed. This harm also flows to those that might
benefit from ?non-traditional? lactation. By limiting which women are protected
under the law, these laws have the inescapable effect of also limiting which types
of families can access the benefits of breast milk for their own children. After
all, women who are lactating for reasons other than feeding their own biological
infants may be doing so for their own benefit, but they may also be donating or
selling breast milk to other families who need it. Indeed, both the formal and
informal markets for donated breast milk are robust.238 Donor milk may be the
only option for adoptive parents, male parents in same-sex relationships, single
fathers, or mothers who have a medical condition that prevents them from
breastfeeding (such as a mastectomy).239 For better or worse, we are in a cultural
moment in which ?the way we feed our infants has become the defining moment
of parenthood.?240 Restricting the ability of non-traditional families to provide
breast milk to their children by failing to protect all lactating women
disadvantages these families.
Restricting legal protections to women expressing breast milk or
breastfeeding nonbiological children?as in adoptive families, for example?is
particularly troubling because it undermines access to breast milk for children
who could most benefit from it. For premature or otherwise sick infants, lacking
access to donated human milk places them at additional risk.241 Donated human
milk is sometimes used therapeutically for older infants as well because of its
effectiveness at treating certain medical conditions.242 If lactation laws are
intended, in part or in whole, to ensure that children have access to the health
benefits of breast milk, then why limit the laws to prevent some infants from
accessing those benefits?243 Indeed, the New York legislature recently approved
a budget plan for the 2017?2018 year that allows Medicaid to cover the cost of
donor breast milk for premature babies in neonatal intensive care units, in part
because it recognized that donor milk ?give[s] these babies a fighting chance.?244
The legislature did this even though New York?s lactation laws only protect
women who are publicly breastfeeding or expressing milk at work for ?their own
infant children.?245 Thus, New York has publicly endorsed the use of state funds
for donated human breast milk after recognizing its important public health
market for human milk, which can sell for more than 150 times the price of cow?s milk?or 400 times
the cost of crude oil).
239. WAMBACH & RIORDAN, supra note 46, at 525?26.
240. BARSTON, supra note 37, at 2?3.
241. WAMBACH & RIORDAN, supra note 46, at 523.
242. For instance, breast milk is an effective therapeutic intervention for infants with a formula
allergy or other feeding intolerance, those with metabolic disorders or certain respiratory illnesses, or
some congenital abnormalities. Id. at 524?25.
243. See Mezey & Pillard, supra note 10, at 235?36 (noting that while the ?new maternalism?
promotes the traditional values of motherhood, it fails to explain why these values?such as nurturance,
responsiveness, and non-commodification?are not deemed equally important to non-mothers and
nontraditional caregivers of all types). Expanding this picture even farther, the benefits from human breast
milk can flow to non-infants as well. Human milk products have also been used to successfully treat
adults with hemorrhagic conjunctivitis, immunoglobulin A deficiency in liver transplant recipients, and
some gastrointestinal issues. Preliminary studies also suggest that human milk may contain unique
proteins that are effective at treating cancer. WAMBACH & RIORDAN, supra note 46, at 541.
244. Marie Solis, New York State Will Subsidize Breast Milk for Preemies Born to Low-Income
Families, MIC.COM (Apr. 25, 2017),
245. N.Y. CIV. RIGHTS LAW ? 79-e (1994) (?Notwithstanding any other provision of law, a
mother may breast feed her baby in any location, public or private, where the mother is otherwise
authorized to be . . . .?); N.Y. LAB. LAW ? 206-c (2007) (?Right of Nursing Mothers to Express Breast
Milk. An employer shall provide reasonable unpaid break time or permit an employee to use paid break
time or meal time each day to allow an employee to express breast milk for her nursing child . . . .?).
function, while also leaving the would-be suppliers of this donated breast milk
outside the law?s protection.246 Several other states either already use Medicaid
dollars to buy donated breast milk or are considering doing so?all while not
providing legal protection for would-be milk donors.247
Modern lactation laws are written so narrowly, in fact, that they could even
exclude adoptive parents from protection. Induced lactation, whereby a woman
uses a combination of stimulation and pharmaceutical drugs to induce her body
to lactate, is becoming more common in the United States.248 Breastfeeding an
adopted child may help build an adoptive parent?s confidence, encourage
bonding, and assuage potential disappointment at not experiencing a biological
pregnancy.249 Many state laws that protect breastfeeding, however, limit
protection to a particular period following the birth of the child.250 For instance,
a Maine law states that: ?[a]n employer . . . shall provide adequate unpaid break
time or permit an employee to use paid break time or meal time each day to
express breast milk for her nursing child for up to 3 years following
childbirth.?251 Connecting the protection of lactation to a time period following
?childbirth? makes it unclear whether women who did not give birth would have
the same rights under the law. This limitation could affect adoptive mothers who
are breastfeeding a child through induced lactation, as well as lesbian couples
who are co-breastfeeding.252
State laws also explicitly connect the promotion of breastfeeding to the
promotion of ?family values,? with the legislative history referring to the ?most
basic family value of all, the bond between a mother and child.?253 The Florida
legislature found that, ?any genuine promotion of family values should
encourage public acceptance of this most basic act of nurture between mother
and baby.?254 As one state legislator succinctly stated, these laws are ?about
mother and apple pie.?255 But the promotion of ?family values? is an ill-defined
legislative goal, and one that will necessarily be tied to the majority?s values and
not necessarily the values of an individual who does not conform to culturally
based directives regarding appropriately maternal behavior or family
structure.256 These laws do nothing to protect, for instance, the family values of
a single father who wants to access the benefits of breast milk for his own child.
Finally, workplace accommodation laws that only offer women unpaid
breaks for lactation ensure that the women who are in a financial position to take
advantage of these laws are in a high socioeconomic stratum.257 Over the course
of six months, a woman who takes two unpaid thirty-minute breaks per workday
to express breast milk will lose approximately fifteen days of paid work.258 Thus,
laws that provide only for unpaid breaks to workers benefit only the most
advantaged families.259 By conferring benefits on already advantaged families,
the laws contribute to the disparities in breastfeeding rates between white, middle
and upper-class families and racial minorities and disadvantaged socioeconomic
groups who already lack access to breastfeeding support.260 For instance, there
is a significant gap between the number of black infants who were ever breastfed
(58.9 percent) and the number of infants overall who were ever breastfed (74.6
percent).261 This gap persists through the six-month postpartum mark, with 30.1
percent of black infants being breastfed at six-months compared to 44.4 percent
of infants overall.262 This gap not only affects infants, but also women who are
often judged harshly for failing to breastfeed their children?even when such
?failure? is outside of their control.263
Moreover, workers who are seen as fungible, or are otherwise devalued, are
less likely to be entitled to accommodations and to receive non-mandated
accommodations if they request them.264 Because pregnant workers and mothers
are already more likely to experience animus in the workplace, they are more
likely to be viewed as non-essential by their employers and thus less likely to
receive accommodations simply by their status as lactating women.265
Laws that fail to protect and support marginalized individuals and families
run the risk of reinforcing the dominant paradigm of the ?right? kind of mother
and family.266 Moreover, these laws may actually exacerbate the gap in
breastfeeding rates through statutory language that offers additional protection
to heterosexual, white, and socioeconomically advantaged families and at the
same time fails to protect marginalized families. This results in harm to both the
lactating woman and to the children who may benefit from such lactation.267
260. See generally Freeman, supra 55 (detailing the institutional and structural barriers to
breastfeeding experienced by minority women); see also Kozhimannil et al., supra note 62, at 9
(?Strategies to address systemic disparities in health outcomes, including infant access to breast milk,
must focus on the social determinants of health which include the overall environment where people
live and work.?).
261. Bernstein & Rutkow, supra note 133, at 171.
263. BARSTON, supra note 37, at 14?15 (?[T]hese days, women who do not breastfeed are
portrayed as lacking?lacking in education and support; lacking in drive; and, in the harshest light,
lacking in the most fundamental maternal instinct.?); see also Artis, supra note 226 at 29 (?Breastfeeding
is a way to achieve so-called good mothering, the idealized notion of mothers as selfless and
264. See Freeman, supra note 55, at 3076.
265. See Grossman, supra note 20, at 849.
266. KEDROWSKI & LIPSCOMB, supra note 39, at 126 (?[T]he icon of the good mother has been
defined as white, middle class, nonworking, and nursing.?); see also Bernstein & Rutkow, supra note
133, at 172?73:
The large disparity in breastfeeding rates between black women and women of other races
and ethnicities means that breastfeeding-related programs and legislation must be examined
from an anti-essentialist, intersectionality perspective. When developing laws, it is important
to consider the multiple intersections or identities that exist for all women, not just based on
gender but also race, class, age, sexuality, and culture. Breastfeeding cannot truly be a choice
for all women when protective laws are based on the experiences of 30-something, white,
heterosexual, middle class women.
267. KEDROWSKI & LIPSCOMB, supra note 39, at 121 (?[O]ur failure to take breastfeeding rights
seriously discriminates against children along class, and by extension racial, lines.?).
By protecting only lactation that occurs within the narrow framework of
culturally acceptable motherhood, we reinforce a culture that devalues other
types of family arrangements and caregiving relationships.268 By focusing on
biological and culturally acceptable motherhood as the basis for lactation rights,
the law leaves out of its protection many people who we should be interested in
protecting?not just the mothers who defy the cultural script about motherhood,
but also a host of people who are non-traditional caregivers and children who
might benefit from the extension of lactation rights to all lactating women.
A PROPOSAL FOR A NEW LACTATION LAW FRAMEWORK
The goal of this Article is emphatically not the elimination of laws that
protect and support breastfeeding and lactating women. Such an outcome would
be a step back for the social and political equality of women. Modern lactation
laws, however, should not fall into the historical trap of protecting some women
while simultaneously reaffirming traditional, outdated gender roles.269 The goal
of this project is to promote legal standards that protect lactation without
requiring lactating women to conform to a narrow cultural script concerning the
appropriate feminine role.270
To do so, three changes to modern lactation laws should be implemented.271
First, laws should protect all lactating women, not only ?mothers.?272 Legislation
should be based on common physiological experience, such as lactation, instead
268. Mezey & Pillard, supra note 10, at 250 (arguing that the ?new maternalism? reinforces a
culture which ?does not value the public potential of women or the domestic potential of men and which
continues to imagine families in the most conventional ways?); see also Kessler, supra note 237, at 1
(arguing that non-traditional forms of caregiving relationships can constitute political resistance and
269. Just as the protective labor legislation that was popular until the middle of the twentieth
century was undoubtedly positive for the working conditions of women, it was simultaneously
detrimental because of its reaffirmation of sex stereotypes that held women back from equal
participation in the labor market. See Brief of Historians, supra note 183, at 12 (?[T]hese protections
were not inherently detrimental, but rather were harmful primarily because they were sex-specific.?).
270. See Burkstrand-Reid, supra note 13, at 254 (?The goal, then, should be to develop health
regulations that are designed to maximize health outcomes with a minimal degree of legal interference
and avoid the legal manufacturing of mothers . . . .?).
271. Other commentators have argued that some of the problems identified here may be
addressed in a discrimination framework. See Matambanadzo, supra note 213, at 261?62 (arguing that
a surrogate who is prevented from taking employer-provided lactation breaks because the surrogate has
been ?inappropriately pregnant? according to the social norms of her employer has been discriminated
against under the Pregnancy Discrimination Act); see also Memorandum in Opposition to Motion to
Dismiss Case, Docket No. 33 (Sept. 4, 2015)., Gonzales v. Marriott Int?l, Inc., Docket No. 33 (C.D. Cal.
Sept. 4, 2015) (arguing that failure to provide surrogate with lactation breaks constitutes discrimination
under state and federal laws). The discrimination framework may provide relief for certain women under
broadly worded anti-discrimination laws such as the PDA. It will likely be unavailing for women
attempting to secure lactation rights under the state laws described herein, however, as they explicitly
require lactating women to have a biological relationship with the nursing child.
272. See Gardner, supra note 140, at 288 (advocating use of terms like ?woman? and ?child?
versus ?mother? and ?infant? in breastfeeding legislation).
of culturally constructed identities, such as motherhood. Second, the laws should
be purged of language that ties protection for lactating women to the eventual
benefit of a biologically related infant child. These requirements undermine the
simple premise that it is a basic right of each individual to make autonomous
decisions about her own body,273 and ignore the benefits that flow to needy
infants and the public generally from donated human breast milk. Third,
legislatures should recognize that the promotion of women?s health in its own
right?not just infants? health?is a worthwhile public health goal. Maternal
health has evolved into a matter of public concern and scrutiny in part because
of the effect it has on the health of women?s children.274 But ceding this point
does not necessarily dictate that maternal health cannot also be the subject of
interest and support for its own sake. Both goals can exist simultaneously,
especially in the lactation context.
Using this framework, a model public breastfeeding law might read:
Notwithstanding any other provision of law, an individual has the right
to breastfeed or express breast milk in any public or private location
where they are otherwise authorized to be.
This language makes no assumptions about the woman or the child she is
breastfeeding and instead focuses on protecting the act of lactation itself.
Through the use of neutral language, which is neither over-inclusive nor
underinclusive, breastfeeding laws would reflect society?s interest in protecting
lactation without further entrenching maternalist ideas.275
Model legislation that provides protection for lactating women in the
workplace will require the consideration of employers? interests as well.
Although lactation laws should avoid the assumptions contained in current laws
regarding lactating women and family structures, employers may reasonably be
concerned about a requirement that they provide breaks to lactating women
without limitation. These concerns could be addressed by adopting the
?reasonable accommodation? model contained in California?s Fair Employment
and Housing Act, which simply requires employers to engage in an interactive
273. KEDROWSKI & LIPSCOMB, supra note 39, at 116 (?The decision of whether or not to
breastfeed, after all, involves a decision about women?s bodies and whether or not women will have the
ability to autonomously control them.?).
274. See Greg R. Alexander & Milton Kotelchuck, Assessing the Role and Effectiveness of
Prenatal Care: History, Challenges, and Directions for Future Research, 116 PUB. HEALTH REP. 306,
307 (2001) (noting that the early development of prenatal care was focused on preventing fetal
275. Additionally, research is needed to determine whether the laws that are enacted are effective
in both protecting breastfeeding women and encouraging employers and the public to support
breastfeeding women. There is no empirical evidence regarding the success of the current legislative
scheme to promote these objectives. See Murtagh & Moulton, supra note 42, at 222 (?We . . . are
unaware of empirical studies of the effect of laws on . . . women?s perception of support for
breastfeeding in the workplace and employers? perception of the benefits they may realize from
employees? continued breastfeeding.?).
process with the employee to determine the necessary accommodation.276 Or it
might take the approach of several states by incorporating an ?undue burden?
standard. Such a law could state:
An employer shall provide reasonable break time for an employee to
express milk each time the employee has a need to do so, unless the
employer can show that the requirements would impose an undue
Such a law would protect all lactating employees but would also allow
employers to assert their own interests if a requested accommodation would
result in an undue burden on the employer?s workplace operations.277
Additionally, lactation laws should include enforcement mechanisms that
allow women?not only the state or its subdivisions?to vindicate their rights in
court. Lactation laws will only have real ?teeth? that can affect behavior if legal
remedies are created that allow women to demand adherence to the law.278 Both
the World Health Organization and UNICEF have recommended legislation that
?protect[s] breastfeeding rights of working women and establish[es] means for
One potential critique of this Article?s proposals is that the problems
described above will likely affect a very small population of women and families.
This is both true and untrue. As reproductive technology and family structures
continue to evolve, the types of legal challenges to breastfeeding rights
undertaken by employers or the state described above are likely to increase, but
they are also likely to remain comparatively rare. In that sense, the effect of the
276. CAL. GOV?T CODE ? 12940(n) (West 2017) (mandating that employers ?engage in a timely,
good faith, interactive process with the employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation by an employee or
applicant with a known physical or mental disability or known medical condition.?). A reasonable
accommodation standard raises both practical and theoretical problems. Practically, it is difficult and
fact-intensive to determine what constitutes reasonable accommodation in any given circumstance. See
Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are
Discriminated Against on the Job, 26 HARV. WOMEN?S L.J. 77, 84 (2003) (noting that the diverse range
of needs for individuals makes universal standards difficult). Further, by individualizing treatment for
each lactating woman, we run the risk of translating ?cultural bias against breastfeeding workers to
produce cramped and ungenerous accommodations.? Ehrenreich & Siebrase, supra note 259, at 68.
277. Employers might re-think the burden of providing lactation breaks, however, if they were
presented with the evidence that allowing breaks reduces employee health care costs, reduces lost
productivity, and decreases absenteeism. See Jennifer B. Saunders, The Economic Benefits of
Breastfeeding, NCSL LEGISBRIEF, Jan. 2010; Maureen Minehan, Advocates Lobby For Breastfeeding
Rights in Public . . . and at Work, 21 No. 24 EMP. ALERT 1, 2 (2004):
In a 1995 study of two corporate lactation programs, infants who were breastfed had 33
percent fewer illnesses than formula-fed infants and 21 percent fewer illnesses that led to a
parent?s absence from the workplace. The programs? overall impact led to a 28 percent
decrease in absenteeism and 36 percent reduction in sick child health care claims.
278. For instance, a proposed Texas state bill would have allowed women to sue for up to $500
in damages for every day their rights were violated. See Evans, supra note 106.
279. WORLD HEALTH ORG., GLOBAL STRATEGY FOR INFANT AND YOUNG CHILD FEEDING
problematic aspects of current lactation laws is likely to remain limited to a small
population of lactating women.
Critically, however, the discursive effect280 of these laws will be to provide
state sanction to essentialized and culturally based assumptions about women,
motherhood, and family structure. Such state speech affects all women.281
Indeed, the force of cultural norms is strong enough that it often overpowers legal
precedents.282 The law should not willingly aid and abet the force of stereotype
Even if legislators did not intend the laws to be interpreted according to the
narrow construction described here,283 the cases discussed above show that there
are litigants willing to use the plain language of the statutes to exclude women,
children, and families from the protection of the lactation laws. Indeed, states
have recently begun passing ?natural meaning? laws that dictate that ?undefined
words shall be given their natural and ordinary meaning, without forced or subtle
construction that would limit or extend the meaning of the language, except when
a contrary intention is clearly manifest.?284 Though these laws are clearly
motivated by the desire to exclude LGBT families from the protection of various
parentage and marriage laws,285 they would apply with equal force in the
Finally, although the current lactation laws are a considerable improvement
from the previous dearth of legal protections for lactating women, a critical eye
toward how such laws could be improved is worthwhile.286 Every law that seeks
to offer protection to women, but does so through an undivided focus on her
280. In using this term, I intend to invoke the idea that language does not only describe the world
around us, but also brings that world into being. Thus, society, through discourse, ?systematically
form[s] the objects of which they speak.? MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE
AND THE DISCOURSE ON LANGUAGE 49 (1972).
281. KEDROWSKI & LIPSCOMB, supra note 39, at 127 (?What we worry about, and what we want
to insist upon in our general advocacy for breastfeeding rights, are the way rights, in terms of their very
power and importance, risk fixing identities.?).
282. CYNTHIA R. DANIELS, AT WOMEN?S EXPENSE: STATE POWER AND THE POLITICS OF
FETAL RIGHTS 7 (1996):
Although women?s rights may ultimately be upheld in the courts, a broader public culture
may continue to endorse resentment toward women and more subtle forms of social coercion
against those who transgress the boundaries of traditional motherhood. Social anxiety and
resentment are most easily projected onto those women who are perceived as most distant
from white, middle-class norms. Political power may ultimately rest not on the technical
precedent of legal rights, but on the symbols, images, and narratives used to represent women
in this larger public culture.
283. In this instance, the legislative intent overwhelmingly shows that legislators were
contemplating a very traditional type of motherhood when they drafted these laws. See infra Part III.B.
284. See, e.g., TENN. CODE ANN. ? 1-3-105(b) (
285. Adrian Mojica, Lawsuit Challenging Tennessee?s ?Natural Meaning? Bill Filed in
Nashville, FOX 17 NASHVILLE (May 8, 2017),
286. See Burkstrand-Reid, supra note 13, at 253 (?Health protection may come with a price. It
may very well be a price worth paying, but that decision should take into account the history of health
protection and current law and politics before it is made.?).
reproductive function, should be carefully scrutinized.287 Many laws that were
passed out of a sincere desire to protect women have nonetheless been rightly
discarded because the protection afforded by the law was inextricably
intertwined with a resulting impediment to women?s full legal equality.288 Over
the last half century, courts have been increasingly willing to accept that laws,
which aim to protect or support women, can be based on the very stereotypes
that hold women back from true equality.289 For instance, in UAW v. Johnson
Controls, Inc., the Supreme Court rejected the argument that a company had a
right to exclude women of childbearing age from certain jobs which exposed
them to potentially harmful chemicals, stating that ?[c]oncern for a woman?s
existing or potential offspring historically has been the excuse for denying
women equal employment opportunities.?290
The cultural assumptions underpinning modern lactation laws undermine
the very equality that women seek through these laws, by firmly tying lactation
rights to a reliance on retrograde ideas about the primacy of women?s biological
maternal roles.291 So even if the modern lactation laws do ?protect? the majority
of women, they do so at an unnecessary price?the reaffirmation of women?s
reproductive role as her primary role.
And yet, even if a state legislature is unpersuaded by arguments regarding
the negative discursive effects of the implementation of lactation laws that
assume and reconfirm gendered expectations of lactating women, there are still
compelling reasons to alter the framing of these laws. As New York?s recent
adoption of a budget that provides Medicaid dollars for donated human breast
milk makes clear, there are compelling public health reasons to protect the act of
lactation whether it is occurring for the sole purpose of nourishing the lactating
woman?s own biological child for a pre-determined number of weeks or years
following childbirth. If state legislators believe their own voluminous legislative
findings about the health benefits that breast milk affords women and infants and
are even passingly aware of the lack of a reasonably priced supply of donor breast
milk for the critically ill infants who need it,292 then they should protect all
287. Brief of Historians, supra note 183, at 2 (?[A]ny new law that claims to protect women?s
health and safety should be scrutinized carefully to assess whether its ostensibly protective function
actually serves to deny liberty and equal citizenship to women.?).
288. Id. at 21?22 (?[E]ven when protection is a genuine goal, not a pretext, and even where an
apparently protective regulation in theory might serve to safeguard health, such laws may function in
practice to limit women?s freedom and autonomy.?).
289. Id. at 9 (?Since the 1970?s, courts and legislatures, pressed by women?s rights claimants,
have recognized that laws reflecting gender stereotypes are harmful to both women and society.?); see
also Rosenfeld v. S. Pac. Co., 293 F. Supp. 1219 (C.D. Cal. 1968) (holding that refusal to hire female
employees due to weight and lifting restrictions is impermissible).
290. 499 U.S. 187, 211 (1991).
291. Cf. Mezey & Pillard, supra note 10, at 233 (noting that while many reforms touted by
maternalist women?s political activists are laudable, ?the cultural package they are using to sell them
perpetuates sex stereotypes that work at cross-purposes with their important goals?).
292. See SURGEON GENERAL?S CALL TO ACTION, supra note 49, at 28.
lactation purely as a matter of public health. Lactation, like pregnancy, is an
activity that benefits society as a whole, even though its costs are exclusively
borne by women.293 At the very least, lactation laws should remove some of the
most burdensome costs to women in light of the benefit that their labor affords
Much of the feminist project of the last fifty years has been focused on
guaranteeing women?s bodily autonomy, particularly their reproductive
autonomy. In seeking the same bodily autonomy already afforded to men,
feminists have employed a number of strategies and frameworks, each of which
came along with attendant risks and benefits. The evolution of lactation law is,
in many ways, a microcosm of the struggles within feminist theory to advocate
for autonomy and equality while accounting for difference.294 Thus while
lactation itself is vastly undertheorized by feminists, 295 the story of lactation and
the law is merely a facet of the overarching fight for women?s equality. A
woman?s right to breastfeed, after all, is merely a specific subset of a woman?s
right to make autonomous decisions about her own body.
Lactation, like pregnancy, poses a unique challenge for legal theorists
because of the difficulty in analogizing it to other circumstances.296 This squarely
implicates the ?sameness? or ?difference? debates.297 Using maternalist
293. See Matambanadzo, supra note 213, at 194:
Legal and economic institutions, however, are not designed to distribute the costs of
pregnancy evenly between those individuals who benefit from it. Instead, the majority of
costs are borne by women. For this reason, feminist legal commentators have argued that to
ensure equality, the costs must be distributed such that all individuals benefiting from
pregnancy internalize its costs.
294. See McCormick, supra note 15, at 311 (?Figuring out what equality looks like when people
are different is a project with which we continue to struggle.?); Deborah Dinner, Strange Bedfellows at
Work: Neomaternalism in the Making of Sex Discrimination Law, 91 WASH. U. L. REV. 453, 530 (2014)
(?We still struggle as a nation with the question whether reproduction represents a private choice and,
hence, a private economic responsibility or a public good deserving of societal support. We continue to
wrestle with the question of how men and women?s different roles in biological reproduction should
inform our understanding of sex equality.?).
295. See Galtry, supra note 11, at 296 (?[F]eminist theorizing in relation to breastfeeding and
labor market concerns needs to catch up with recent policy developments.?).
296. See Grossman, supra note 20, at 827 (?Women in the workforce encountered a system that
openly and perhaps obviously treated pregnancy as a sui generis condition. It was, according to the
conventional wisdom at the time, like nothing else that workers experienced.?).
297. In the 1970s and 1980s, feminist legal theorists disagreed sharply about whether embracing
?difference? and crafting legal policy that took account of that difference, or embracing an equality
framework that emphasized the ?sameness? of women?s and men?s experience in the workplace and
beyond, was the better legal strategy. See Williams, Reconstructive Feminism, supra note 220, at 86?87
(2009). The ?sameness? framework resulted in an insistence on formal legal equality, allowing women
to access heretofore male-only spaces and professions to the extent that women could perform equally
well. The ?difference? framework suggested that institutions, including legal institutions, should be
restructured to reflect women?s different approaches, strengths, and inclinations. While often the
?difference? framework relied on stereotypical assumptions about women, it also sought to address the
language to describe breastfeeding can be an effective tool in the promotion of
breastfeeding laws because it will appeal to conservative legislators in a way that
an argument focused on individual rights might not. The utilization of such
language, however, carries the risk of reinforcing the naturalness of the maternal
category in a way that is ultimately constraining to women. The ?double-edged
sword of maternal politics?298 must be wielded with care.
On the other hand, in the absence of maternalist arguments for increasing
the legal protections for women and families, courts and legislatures may revert
to a strictly formal equality framework which often fails to consider the
experiences and unique needs of lactating women. Courts? historical refusal to
view lactation rights as falling within the purview of laws which prohibit sex,
pregnancy, or disability discrimination is an archetypical example of formal
equality that ?le[aves] women vulnerable to a system that, while making it
possible for women to be more engaged in the labor force, still define[s] the male
body and mind as the norm.?299 Dislodging the male as the norm has proven
difficult, however. Therefore, this path, too, is potentially fraught. And although
there is no direct corollary in men?s reproductive rights, it is problematic that
breastfeeding laws are crafted in such a way that women?s rights are sublimated
to the public good in a way that men?s rights are not?and cannot be.300
Further, much of feminist theory in the past thirty years has been engaged
in pushing back against the simplification of women?s experience into a monolith
and making feminist theory responsive to a larger range of lived experience.
Flattening the array of women?s lived experience to that of the most common
experience not only risks leaving individuals and groups out of the conversation,
it also risks naturalizing the primary experience such that any other experience
is viewed as deviant and abnormal.301 Analyzing how laws affect marginalized
real physical differences between women and men in a way that the feminists advocating for formal
legal equality often ignored.
298. Dinner, supra note 294, at 530 (discussing how the ?new maternalism illustrates the
doubleedged sword of maternal politics: its potential to reify gender norms even as it uses gender as a category
by which to make demands upon the state.?).
299. Paige Hall Smith, ?Is It Just So My Right?? Women Repossessing Breastfeeding, 3 INT?L
BREASTFEEDING J. (2008).
300. See ANNE BALSAMO, TECHNOLOGIES OF THE GENDERED BODY 110 (noting that the
prosecution of women for harm inflicted on the fetus in utero ?establishes unequal treatment of women
in that there is no corresponding scrutiny of men and male body behavior? and that as a result ?a
discriminatory system of surveillance is established?); Siegel, supra note 109, at 815?16 (?Whatever
sex role differences in intimate and family relations custom may engender, government may not
entrench or aggravate these role differences by using law to restrict women?s bodily autonomy and life
opportunities in virtue of their sexual or parenting relations in ways that government does not restrict
men?s.?); see also Brief of Historians, supra note 183, at 12?13 (discussing the protective labor
legislation enacted at the beginning of the twentieth century, which ?[w]hile couched in arguments for
women?s health, morals, and physical safety . . . frequently invoked the public health, suggesting that
women did not have the right to decide the uses of their own bodies or the control of their own morals,
and that women?s, but not men?s, rights could be subordinated to the interests of a ?public.??).
301. See Adele E. Clarke & Virginia L. Olesen, Revising, Diffracting, Acting, in REVISIONING
WOMEN, HEALTH, AND HEALING 8 (Adele E. Clarke & Virginia L. Olesen eds., 1999) (?Simplification
individuals helps us to more clearly see who and what the law is structured to
protect.302 By conceiving of lactation rights as only responsive to one type of
experience, and then writing laws that reinforce that experience as the only valid
one, any experiences that differ from the norm will not only be left without legal
protection but will also be subject to the double weight of both cultural and legal
pressure to conform.303 If we accept that only certain women should be afforded
the protection of lactation laws?those who fit within our culturally defined
conception of traditional motherhood?we run the risk of transforming our
cultural preferences into seemingly inarguable biology.304 When it comes to
lactation, however, it seems clear that our biology and history point in a vastly
different direction toward a landscape in which women nurse far past a year
postpartum or nurse children that are not biologically related to them.305
Just as lactation law is a microcosm for the problems inherent in the
feminist project?crafting laws that address difference without reliance on
stereotypes, responding to the range of women?s lived experience, and avoiding
the tendency towards a male norm?it also has the potential to be a powerful
example of how the law can succeed in promoting real equality. Lactation rights
are an area in which there is room for both difference and equality feminist
arguments; women?s unique biological ability to lactate should be the basis for
legal protection and yet the act of lactation should not serve as a justification to
treat women as economic, political, or social inferiors or to unduly associate
women with outdated maternal stereotypes.
But perhaps as a result of the failure to take lactation seriously as a subject
for careful feminist thought and analysis, the state lactation laws discussed
above, replete with explicit and implicit gender stereotypes, were passed without
often involves the deletion of the context or ?situatedness? [citation] of something and the erasure of the
mundane and often messy work that has gone into creating it. Simplification can be naturalizing in the
critical sense of rendering something as taken-for-granted and intrinsically accepted and acceptable.
[Citation.]?); see also Matambanadzo, supra note 213, at 191 (?[P]regnant bodies in law do not exist as
pre-cultural artifacts that lie outside of social interactions; instead, pregnant bodies are forged through
discourse, experienced through social interactions, and endowed with meaning by cultural
302. Here, the tradition of standpoint epistemology within feminism suggests that ?preferable
outcomes result when we theorize from the position of the most disadvantaged, because those deeply
situated within oppression are better able to see it, describe it, and develop less partial strategies for its
elimination.? Kessler, supra note 237, at 8.
303. KEDROWSKI & LIPSCOMB, supra note 39, at 116 (?By approaching breastfeeding issues
from the materially situated contexts of different women?s lives, we can get the best picture of what the
right to breastfeed should look like.?).
304. Mezey & Pillard, supra note 10, at 236 (?Likewise, we consider the ways in which cultural
default rules?especially those regulating gender?can become so entrenched and self-perpetuating that
they fuel adaptive preference formation and may even come to be regarded as biological.?).
305. See generally Grayson, supra note 216. Indeed, the archetypical historical example of the
use and acceptance of women nursing children who are not their own is the biblical story of Moses, who
ended up being breastfed by his mother Yocheved in the guise of a wet nurse. Wet-nursing is, in fact,
one of the oldest professions that was open to women. See Valerie A. Fildes, BREASTS, BOTTLES AND
BABIES: A HISTORY OF INFANT FEEDING (1986).
drawing a more thoughtful critique from the feminist community.306 On the other
hand, if the deficiencies in lactation law, much like pregnancy discrimination
law forty years ago, are ?rooted more in confusion than resistance,? then they
may present an opportunity and ?invitation to advocates and academics to
provide guidance for developing a theory?307 of lactation rights. This Article
aims to start that conversation by recognizing that while the unique legal needs
of lactating women can and should be met, lactation laws need not rely on
outdated ideas about women and families to do so.308
306. Galtry, supra note 11, at 309 (?[P]ractical policy developments to support breastfeeding
among women in paid work have outstripped developments in feminist thinking.?).
307. See Grossman, supra note 20, at 828.
308. Galtry, supra note 11, at 309 (?In recognizing the uniquely female-specific nature of
breastfeeding, both the development of theory and the implementation of appropriate policies must not
reinforce either essentialist notions of motherhood or existing labor market inequalities.?).
I. Lactation Rights and the Courts ........................................................ 1832
II. Modern Lactation Laws ................................................................... 1835
A. Workplace Accommodations............................................. 1837
B. Public Breastfeeding Laws ................................................ 1840
C. Other Lactation Laws ........................................................ 1843
D. The Language of Modern Lactation Laws......................... 1845
E. Public Response to Modern Lactation Laws ..................... 1848
III. Critique of Modern Lactation Laws................................................ 1849
A. Lactation Rights as Infants' Rights .................................... 1850
B. Protecting the ?Right? Kind of Lactating Woman ............ 1861
C. Lactation Rights and the Family........................................ 1870
IV . A Proposal for a New Lactation Law Framework.......................... 1875
Conclusion ............................................................................................ 1880 12. Cf. Dara E. Purvis, The Rules of Maternity , 84 TENN. L. REV. 367 , 369 ( 2017 ) (describing
acceptable motherhood and by fundamentally altering the autonomy of mothers ). 13 . See , e.g., Beth A . Burkstrand-Reid , From Sex for Pleasure to Sex for Parenthood: How the
Law Manufactures Mothers , 65 HASTINGS L.J. 211 , 258 ( 2013 ); Mezey & Pillard, supra note 10, at
to lactate, see Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI . AM., Sept. 6 , 2007 , male
questions that a lactating male might present . 24. E.E.O.C. v. Houston Funding II , Ltd., 717 F.3d 425 , 428 ( 5th Cir . 2013 ). 25 . See Martin v. Canon Business Solutions , Inc., No. 11 -cv-02565 - WJM-KMT, 2013 WL
4838913, at *8 ( D. Colo . Sept. 10 , 2013 ); Allen-Brown v . District of Columbia , 174 F. Supp . 3d 463 ,
478 (D.D .C. 2016 ); E.E.O.C. v. Vamco Sheet Metals, Inc., No. 13 Civ. 6088(JPO) , 2014 WL 2619812,
at *6 (S.D.N .Y. June 5, 2014 ). 26 . Some states have also recently passed Pregnant Workers Fairness Acts, which specifically
ANN. tit. 19 , ? 710 ( 17 ) ( West 2016 ) (defining pregnancy discrimination as including lactation
discrimination) . 27 . See Grossman, supra note 20 , at 849-50 (noting the distinction in pregnancy discrimination
claims between ?status? claims and ?action? claims). 28 . See Marcy Karin & Robin Runge, Breastfeeding and a New Type of Employment Law, 63
CATH. U. L. REV . 329 , 341 n. 64 ( 2014 ) (collecting cases in which courts held the ADA inapplicable to
breastfeeding claims); see also Bond v . Sterling, Inc., 997 F. Supp . 306 , 311 (N.D.N .Y. 1998 ) (?It is
Martinez v. N.B.C. , Inc ., 49 F. Supp . 2d 305 , 309 (S.D.N .Y. 1999 ) (dismissing breastfeeding claim
Nat'l Bd . of Med . Exam'rs, 965 N.E.2d 829 , 835 (Mass. 2012 ) (stating that lactation and expressing
breast milk were not covered disabilities under the ADA) . 29 . See generally Kousaie, supra note 14 , at 224-27 ( discussing litigants' unsuccessful attempts
impairment beyond normal pregnancy) . 30. Bond , 997 F. Supp . at 311 . 31. Id . The author notes the irony that courts will exempt lactation from protection under the
from protection under the ADA because it is a normal condition related to pregnancy . 32 . 650 F.2d 783 , 787 ( 5th Cir . 1981 ). 33 . Id . 34 . See Southerland v. Thigpen , 784 F.2d 713 , 718 ( 5th Cir . 1986 ) (denying an incarcerated
woman's right to breastfeed her infant son); see also Berrios-Berrios v . Thornburg , 716 F. Supp . 987 ,
990- 91 ( E.D. Ky . 1989 ) (recognizing the fundamental interest in a woman's decision to breastfeed and
U.S. NEWS ( July 1 , 2017 ), https://www.usnews.com/news/best-states/new-mexico/articles/2017-07-
01/judge-new-mexico-prison-breast-feeding-ban-unconstitutional [https://perma .cc/K596-U4X8]
during visits violated the New Mexico state constitution) . 35 . See CTRS . FOR DISEASE CONTROL & PREVENTION, NATIONAL BREASTFEEDING REPORT
CARD ( 2016 ). The report tracks five indicators: (1) ever breastfed, (2) breastfeeding at six months, (3)
breastfeeding at twelve months, (4) exclusive breastfeeding at three months, and (5) exclusive
breastfeeding at six months. 49 . See U.S. DEP'T OF HEALTH & HUMAN SERVS., THE SURGEON GENERAL'S CALL TO
ACTION TO SUPPORT BREASTFEEDING 12 , 17 - 18 , 23 , 39 ( 2011 ), https://
[https://perma.cc/GG73-EYRP] [hereinafter ? SURGEON GENERAL'S CALL TO ACTION ?] . 50. Shana M. Christrup , Breastfeeding in the American Workplace, 9 AM. U. J. GENDER SOC.
POL'Y & L . 471 , 481 ( 2001 ) (?For example, having milk leak in the middle of an important meeting
least not be as severe, if the mother was not within the work environment . ?). 51. WAMBACH & RIORDAN, supra note 46 , at 637 . 52. Id . 53 . Murtagh & Moulton, supra note 42, at 217 . 54. Id. at 218 (? Professional women typically have more autonomy, enabling greater privacy to
breastfeed and greater freedom to accommodate the timing demands of lactation .?). 55. WAMBACH & RIORDAN, supra note 46 , at 58; see also Andrea Freeman, ?First Food?
Justice: Racial Disparities in Infant Feeding as Food Oppression, 83 FORDHAM L . REV. 3053 , 3063
( 2015 ) (discussing racial disparities in breastfeeding rates ). 56 . Murtagh & Moulton, supra note 42, at 218 . 57. ARK. CODE ANN. ? 11 -5- 116 ( 2009 ) ; CAL . LAB. CODE ? 1030 et seq. ( 2001 ) ; COLO . REV.
STAT. ? 8 - 13 . 5 - 104 ( 2008 ); D.C. CODE ? 2 - 1402 .82 ( 2007 ) ; HAW. REV . STAT. ? 378 - 2 ( 2013 ); 820 ILL.
COMP. STAT. 260 /10 ( 2001 ) ; IND . CODE ? 5-10-6-2 ( 2008 ) ; LA . STAT. ANN. ? 17 : 81 ( 2016 ) ; ME . STAT.
tit. 26, ? 604 ( 2009 ) ; MINN . STAT. ? 181 .939 ( 2014 ) ; MONT . CODE ANN. ? 39 -2-215 et seq. ( 2007 );
NEB. REV . STAT. ? 48 - 1102 ( 2015 ) ; N.M. STAT . ANN. ? 28 - 20 -2 ( West 2007 ); N.Y. LAB. LAW ? 206- c
36 WOMEN'S RTS. L. REP . 435 , 462 ( 2015 ) (proposing that breast milk should be federally regulated,
like blood is, to ensure its safety and to increase the supply of breast milk for people who need it ). 84. See 40 PA. STAT. & CONS . STAT. ANN. ? 1583 (West 1996 ); 42 U.S.C. ? 1396a ( 53 ) ( 2012 );
10 U.S.C. ? 1079 (a)( 17 ) ( 2012 ) ; OR . ADMIN. R. 410 -122- 0250 ( 2008 ) ; D.C. MUN . REGS. tit. 29 , ? 10002
( 2017 ) ; MISS . ADMIN. CODE 23-209:1.15 (West 2014 ) ; OHIO ADMIN . CODE 5160-10-25 ( 2017 ). 85 . See N.M. STAT . ANN. ? 61 - 36 -3 ( West 2017 ) ; OHIO REV . CODE ANN. ? 3711 .20 (West
2016 ). 86 . See CAL . HEALTH & SAFETY CODE ? 123366 (West 2014 ) ; 210 ILL. COMP . STAT. ANN.
81 /10 (West 2013 ) ; MISS . CODE ANN. ? 41 - 135 -5 ( West 2016 ) ; N.J. ADMIN . CODE ? 8 : 43G - 19 . 14
( 2012 ). 87 . See 42 U.S.C. ? 1790 ( 2012 ) ; 20 ILL. COMP . STAT. ANN. 2310 / 2310 - 442 ( West 2000 ); 1
GUAM CODE ANN. ? 1036 ( 2013 ); P.R. LAWS ANN. tit. 1 , ? 5165 ( 2003 ). 88 . See MINN . STAT. ? 145 .893 ( 1978 ); 42 U.S.C. ? 18203 ( 2012 ) ; 20 ILL. COMP . STAT. ANN.
1305 / 10 - 25 ( West 2000 ). 89. LA. STAT. ANN. ? 46 :1407(e) ( 2016 ). 90 . In addition, government literature on breastfeeding likewise relies on the language of
SURGEON GENERAL'S CALL TO ACTION , supra note 49 (relying primarily on the term ?mother? or
reinforce the maternal relationship being described) . 91. ALA. CODE ? 22-1-13 ( 2006 ) ; ARIZ. REV. STAT . ANN. ? 41 - 1443 ( 2006 ) ; CAL . CIV. CODE
? 43.3 ( 1997 ) ; COLO . REV. STAT. ? 25-6-302 ( 2004 ) ; CONN . GEN. STAT. ? 53 - 34b ( 1997 ) ; DEL . CODE
ANN. tit. 31 , ? 310 ( 1997 ); D.C. CODE ? 2 - 1402 .82 ( 2007 ) ; FLA . STAT. ? 383 .015 ( 1994 ) ; GA . CODE
? 31 -1- 9 ( 2002 ) ; 740 ILL. COMP . STAT. 137 /10 ( 2004 ) ; KAN . STAT. ANN. ? 65 - 1 , 248 ( 2006 ) ; KY . REV.
STAT. ANN. ? 211 .755 ( 2006 ) ; LA . STAT. ANN. ? 51 : 2247 .1 ( 2001 ) ; ME . STAT. tit. 5 , ? 4634 ( 2001 );
MD. CODE ANN., HEALTH-GEN. ? 20 - 801 ( 2003 ) ; MASS. GEN . LAWS ch. 111 , ? 221 ( 2008 ); MICH.
COMP. LAWS ? 750 . 335a ( 2014 ) ; MINN . STAT. ? 145 .905 ( 1998 ) ; MISS . CODE ANN. ? 17-25-9 ( 2006 );
MO. REV. STAT. ? 191.918 ( 2014 ) ; MONT . CODE ANN . 50 -19- 501 ( 2007 ) ; NEB . REV. ST. ? 20 - 170
( 2011 ) ; NEV . REV. STAT. ? 201.232 ( 1995 ); N.H. REV . STAT. ANN. ? 132 .10- d ( 1999 ) ; N.J. STAT . ANN.
? 26 : 4B - 4 ( West 1997 ) ; N.M. STAT . ANN. ? 28 - 20 -1 ( West 1999 ); N.Y. CIV. RIGHTS LAW ? 79 - e 197. Ralph Blumenthal , A Houston Fuss over Breast-feeding Strikes a Responsive Nerve , N.Y.
TIMES (Apr. 19 , 2007 ), http://www.nytimes.com/ 2007 /04/19/us/19nurse.html [https://perma.cc/U6K4-
FVG9]. 198 . Thread Starter (bluegreenturtle), The Outcome of the Ronald McDonald House
Breastfeeding Meeting , MOTHERING (Apr. 16 , 2007 , 10 :01 PM), http://www.mothering.com/forum/25-
[https://perma. cc/6KPU-GYV3]. 199. TEX. HEALTH & SAFETY CODE ANN. ? 165.002 ( 1995 ). 200 . Even in states where it is not a legal requirement to be discreet, nursing women are often
She Was Told to Breast-feed 'Discreetly' , GLAMOUR (June 20 , 2017 ),
[https://perma.cc/E2RF-WN24] (detailing the story of young mother who was told by the manager at a
public pool that she had to ?be more discreet because you're offending other people?). 201. As one commentator aptly noted, ?Who decides what 'manner' is 'discreet and modest'?
Revisited , MOTHERING (Aug. 11 , 2011 ), http://breastfeedinglaw.com/articles/lactation-and -the-law-
revisited/ [https://perma.cc/6YGC-RUBB]. 202 . PA. HOUSE JOURNAL , No. 59 , Reg . Sess. ( 2007 ). 234. Daniel Woodruff, Bill to Protect Breastfeeding in Public Fails in Senate Committee,
KUTV. COM (Mar. 1 , 2016 ), http://kutv.com/news/local/bill-to -protect-breastfeeding-in-public-fails-in-
senate-committee [https://perma.cc/JEX5-2MQ4] (quoting Utah state senator Jim Dabakis) . 235 . Mezey & Pillard, supra note 10, at 230 . 236. See Matambanadzo, supra note 213 , at 229:
family and the diversity of ways in which families are formed also creates complications . 237. See Laura T. Kessler, Transgressive Caregiving, 33 FLA. ST. U. L. REV. 1 , 8 ( 2005 )
ACTION , supra note 49, at 12 , 17 - 18 ( referring only to the effect on breastfeeding rates of ?fathers,? or
lesbian or transgender parents or families) . 238. Julian Robinson , 400 Times the Price of Crude Oil: Breast Milk Is Now Big Business but
7, 2015 ) http://www.dailymail.co.uk/news/article-3152161/It-cost-400 - times -price-crude-oil-2-000-
[http://perma.cc/E2AM-7TCR] (describing the intense battles occurring at the state level to regulate the 246 . See N.Y. LAB . LAW ? 206- c ( 2007 ). Further, while the 2011 Surgeon General's Call to
expect this donor milk to come from? SURGEON GENERAL'S CALL TO ACTION , supra note 49 . 247. Olivia Campbell, When Babies Need Donated Breast Milk, Should States Pay? , STAT (Oct.
4, 2016 ) https://www.scientificamerican.com/article/when -babies-need-donated-breast-milk-should-
states-pay/ [https://perma.cc/STR4-2H5R] (noting that California , Texas, Missouri, Kansas, Utah, and
the District of Columbia have covered the cost of donated breast milk for some low-income newborns ). 248. WAMBACH & RIORDAN, supra note 46 , at 926-27 ( quoting a 40-year-old adoptive mother
breastfeed without having been pregnant. 249. Id. at 581-82 . 250 . See , e.g., La . Acts, P.A. 87(W)( 1)(b ) ( 2013 ) (?[E]ach city, parish, and other local public
LAWS ANN. tit . 29 , ? 478 (h) ( 2018 ) (defining a ?[n]ursing mother? as ?[a]ny woman working in the
scientific methods is able to breastfeed the child?). 251. ME . STAT. ANN. tit. 26 , ? 604 ( 2009 ). 252 . Kasandra Brabaw , This Same-Gender Couple Takes Turns Breast-Feeding Their Baby ,
REFINERY29 (Feb. 28 , 2017 , 11 :00 AM), https://www.refinery29.com/ 2017 /02/143037/same-sex-
couple- breastfeeding-lgbtq [https://perma.cc/32R9- Z9WY ]. 253. Arizona H .B. 2376 , Arizona House Committee Minutes (Feb. 15, 2006 ) (statement of D.
Christia Bridges-Jones). 254 . FLA. STAT. ? 383 .015 ( 1994 ). 255. PA. HOUSE JOURNAL , No. 59 , Reg . Sess. ( 2007 ). 256 . See Abrams, supra note 149 , at 1991 (arguing that the assumption that women will
conforming mothers?) . 257 . Murtagh & Moulton, supra note 42, at 220 ( discussing how hourly workers may be unable
to take advantage of unpaid breaks because of economic concerns). 258. Assuming two weeks of vacation, a woman who takes an unpaid break of an hour a day, or
Consequences of Breastfeeding for Women, 77 AM. SOC. REV . 244 , 253 - 62 ( 2012 ) (describing losses
in income for mothers generally , and breastfeeding mothers specifically) . 259 . See generally Nancy Ehrenreich & Jamie Siebrase, Breastfeeding on a Nickel and a Dime:
Why the Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, 20 MICH.
J. RACE & L. 65 , 65 ( 2014 ) (arguing that the Affordable Care Act's Nursing Mothers Amendment ?could