Although economics teachers never invoke the metaphor of a lactating breast, it nicely illustrates a natural equilibrium between supply and demand. The more a baby sucks or a mother pumps, the more milk the breast produces. This is why a mother comfortably nurses an infant who doubles and then triples his weight during the first twelve months; it is why a woman can successfully nurse twins and even triplets. It is also the biological foundation for my central premise: that our legal regime should encourage a market in human milk--the superior source of infant nutrition.
Ever since medical technology has allowed humans to share blood, organs and other tissue, discussion has raged about the practical and ethical implications of commercializing products of the human body. (1) Breastmilk, however, is rarely mentioned in the course of the debate. This silence is curious, especially since babies have always consumed milk from women other than their biological mothers. Until the advent of infant formula, wet nursing was the only way to save an infant whose mother had died or was unavailable. (2) Even today informal sharing of milk continues, although the Centers for Disease Control and Prevention recommends against it. (3) Some mothers nurse another woman's child when babysitting. More commonly, women pump milk for the child of a friend or relative, typically because the child is adopted and the adoptive mother is not lactating. (4)
The silence is even more striking because of the active milk banking programs that exist throughout the world. At present, there are six milk banks in the United States (5) and many more across the globe. (6) These banks are the formal mechanisms to help ensure that needy infants receive human milk. They collect milk from unpaid donors (7) and then dispense it to premature infants and those with significant nutritional and immunological problems, as well as to healthy babies whose mothers cannot breastfeed. First priority goes to premature infants or those who have malabsorption disorders, formula intolerance, immunologic deficiencies, congenital anomalies, or are recovering from surgery. (8) If milk supplies are adequate, the banks accept prescriptions for adopted babies, when a mother has died or her illness interrupts breastfeeding, when a mother's milk poses a health risk (for instance, she is HIV-positive), and in the rare instance where a mother's milk supply is insufficient to feed her child. (9)
Every medical institution and government agency responsible for maternal and infant health has identified the need to increase breastfeeding rates in the United States. (10) In this piece, I argue that we are overlooking how the milk banking system might advance this goal, particularly if it paid the milk source. Milk banks are already dispensing milk for adopted infants and other healthy babies who have no "special" need for breastmilk, but who instead benefit just like any healthy infant would. Building on the milk bank model and compensating women who express milk may increase the number of babies receiving human milk in three ways. First, and most obvious, we can expect the promise of a profit to motivate more women to pump milk for someone else's use. Second, and less apparent, mothers who might otherwise choose to formula-feed their babies may breastfeed if they know it will lead to another source of income; maintaining an adequate milk supply would be difficult without actually nursing a child. (11) T hird, and least obvious (although arguably most important), the creation of a niche market may help convey the value of human milk and convince women to breastfeed even if they are not interested in making sales.
Part I reviews why health officials are so eager to increase breastfeeding rates and highlights the medical benefits that lactation provides for women and children. Part II explains the milk banking process and argues that compensating lactating women will not jeopardize the safety of the milk supply--one of the issues most frequently raised by those who object to compensating sources of human tissue. Part II also discusses how much banked milk might cost and how parents might choose between breastfeeding, formula, and banked milk. Finally, Part III explores how human milk fits into the larger normative debate about whether we should permit individuals to sell their bodily materials.
The American Academy of Pediatrics recommends that an infant receive nothing but breastmilk for the first six months of life, and that breastfeeding continue for at least the first twelve months. (12) Although infant formula is usually perceived as the second-best choice, the ranking by the World Health Organization emphasizes the inferiority of formula: after breastfeeding, "the second choice is the mother's own milk expressed and given to the infant in some way. The third choice is the milk of another human mother. The fourth and last choice is artificial baby milk." (13)
Breastmilk is better than formula because it is tailored to the precise needs of the human infant. Indeed, breastmilk contains over one hundred substances that are not in formula, including immunologic agents and other compounds that act against viruses and bacteria. (14) When breastfed infants are compared to formula-fed infants, the advantages of breastmilk are apparent. Research in the United States and other developed countries strongly suggests that breastmilk decreases the incidence and severity of many infant illnesses, including lower respiratory infection, middle-ear infection, bacterial meningitis, urinary tract infection, diarrhea, and a range of gastrointestinal infections. (15) Studies also suggest human milk can protect against a variety of chronic conditions, including insulin-dependent diabetes, Chrohn disease, celiac syndrome, asthma, eczema, and several allergenic diseases. (16) Breastfeeding is also associated with lesser incidence of sudden infant death syndrome and lower rates of childhood cancers, particularly lymphoma and leukemia. (17) Finally, research suggests that breastfed babies score higher on various measures of cognitive development, including intelligence tests. (18)
Breastfeeding also benefits the nursing mother. In the immediate postpartum period, it decreases postpartum bleeding and helps the uterus more rapidly return to its pre-pregnancy state. (19) Women who nurse frequently are unlikely to ovulate, which protects their bodies from the strain of having children in rapid succession. (20) In addition, women who breastfeed have lower incidences of postpregnancy obesity and decreased risk of premenopausal breast cancer and ovarian cancer. (21) They also have a decreased incidence of osteoporosis when compared with both women who do not bear children and women who bear children but do not breasffeed; (22) this improved bone remineralization reduces hip fractures in the postmenopausal years. (23)
While some women may experience initial physical discomfort or be overwhelmed by the need to be available for (or at least pump milk in anticipation of) every feeding, (24) on balance the decision to breastfeed seems like an easy one. Yet the rate of breasifeeding in the United States is the lowest of all industrial nations. (25) For more than twenty years, the federal government has aimed to have seventy-five percent of American mothers breastfeed in the early postpartum period and fifty percent breastfeed for six months. (26) Reality has consistently fallen short of these aspirations. In 1998, sixty-four percent of mothers breastfed in the hospital and twenty-nine percent continued for six months. (27) In 2000, the federal government acknowledged the American Academy of Pediatrics' recommendation that breastfeeding continue for at least a year and announced the goal that by 2010, twenty-five percent of mothers breastfeed through the first year. (28) In 1998, sixteen percent of American women nursed for a year. (29)
These numbers, which fall short of the government's goal, probably overstate the amount of breastfeeding occurring in the United States. The benefits of human milk are greatest when formula is excluded altogether and decline proportionately as formula is added to the infant's diet. (30) The only comprehensive survey of infant feeding practices, however, counts a mother as breastfeeding even if she nurses just once a day. (31) Moreover, the actual duration of breastfeeding may be even shorter than the six month interval statistics suggest. For example, one study of mothers enrolled in the federal Women, Infants and Children (WIC) supplemental nutrition program showed that one-fourth of mothers who breastfed in the hospital were no longer breastfeeding by the end of the second week. (32) One half of the mothers who initiated breastfeeding had stopped by the end of the second month. (33) In sum, a careful study of the available data suggests that the state of breastfeeding in the United States is even bleaker th an it initially appears.
The data have not always been so grim. (34) Until the 1930s, virtually all American children were breastfed either by their mothers or by wet nurses. However, improvements in mechanization, transportation, and storage allowed the dairy industry to seek additional markets. After infant formula was found to be a lucrative outlet, its manufacturers launched a full-fledged effort to convince parents that science had created "viable 'humanized milk"' and that breastfeeding was primitive, dated, and unnecessary. (35) While the pro-formula rhetoric has changed over the decades, it has always suggested that formula is an effortless and more-than-adequate substitute for breastmilk:
The reasons for not breastfeeding shift every few years. For a while, the "in" reason was "contaminants in mothers' milk." Next was the concern that breastmilk "led to the development of high cholesterol." After that came "breastfeeding is a precursor to sexual...