THE HEALTH/CARE DIVIDE: BREASTFEEDING IN THE NEW MILLENNIUM.

• Author: Laufer-Ukeles, Pamela

Abstract

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

INTRODUCTION

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

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

At the same time, breastfeeding demands time, resources, and energy from mothers who must also provide economically and emotionally for children, among other responsibilities. Additionally, the medical push to breastfeed clashes with a workplace that has traditionally not been amenable to breastfeeding. For the six months to two years of AAP-recommended breastfeeding, mothers face an impossible conflict: whether to prioritize providing medically advised nourishment or economic security and income."

In this Article, we do not advocate for breastfeeding--we maintain that mothers should be able to choose whether or not to breastfeed. However, we consider the immense pressure to breastfeed that mothers face and the way the workplace, legal accommodations, and societal developments have reacted to the health push. We argue that, in light of this pressure, women's agency must be supported by enabling real choices when it comes to their bodies and their infants' nutrition. Formula feeding should remain an acceptable option for mothers, but working mothers should be enabled to breastfeed through sufficient workplace accommodations.

We identify two primary reactions to the push to breastfeed. In a groundbreaking provision, the 2010 Patient Protection and Affordable Health Care Act (ACA) for the first time acknowledged breastfeeding as a health priority and granted mothers the right to pumping breaks at work. (1112) These breaks allow mothers to express milk (13) in private, which can then be preserved and offered to infants at a later time. Pumping breaks are important for breastfeeding mothers, as expressing while at work and away from infants is essential to maintaining milk supply and avoiding infection. (14) While such breaks remain unpaid and are unreliably enforced, expressing milk has now become a modern mother's reality. (15) According to some estimates, eighty to ninety percent of lactating mothers pump, and some case law has recently begun to acknowledge claims of workplace discrimination pertaining to mothers fired because of their wish to pump at work. (16)

In the wake of the growing health push and in tandem with the prevalence of pumping milk, a second major development is the emergence of a thriving online market in human milk. (17) Families struggling to provide human milk to infants and seeking to procure the perceived ideal nutrition are increasingly looking to online portals. Many mothers have trouble breastfeeding and extended pumping of milk has met with little success. Mothers in the workplace, in particular, struggle to continue breastfeeding. (18) In light of health priorities, many parents have been replacing formula with other mothers' human milk bought in the market. The online market is "booming" and has become a resource for thousands of consumers with millions of ounces exchanged daily. (19)

These developments represent potentially significant changes. Arguably, such developments should be welcomed, as they relieve pressure on mothers in the workforce. Legal provisions enabling pumping and unregulated markets have encouraged pumping and purchasing milk. However, what is striking is the way these two developments have led to a prioritization of the provision of nutrition in a manner that is alienated from nurture and care. We call these developments--pumping and purchasing--"separation strategies." Responses to the push to breastfeed that accommodate expressing and enable purchasing of bottled human milk mask the fact that such developments require mothers to pump or to purchase rather than to breastfeed, which implies a message about the importance of the breastmilk rather than the process of breastfeeding itself. Separation strategies create an expectation that mothers mechanically remove their milk from their bodies or purchase other mothers' milk in order to remain in the labor market. These separation strategies, we argue, disconnect nurture from nutrition and care from a mother's own biological capacities in a manner that has not been sufficiently scrutinized. (20)

Breastfeeding has been described as an ultimate act of maternal bonding, a symbiosis between nurture and nutrition. (21) The implicit assumption of separation strategies is that the biological caring act inherent to the breastfeeding process will be dismantled and instead will be replaced as a matter of course by a mechanical, detached alternative. The way that separation strategies contend with mothers' biological capacities and infant-mother interdependency in effect demands the separation of mothers from the breastfeeding process. This neglect of the relational process, we show, is consistent with the undervaluing of care more broadly in employment and family law. (22) Moreover, beyond the relational deficits, there are other downsides to separation strategies. First, the process of breastfeeding provides particular health benefits that cannot be entirely replicated by the separation strategies of pumping and purchasing, and that may even be compromised by them. Second, enabling only separation strategies creates costs and generates distributive concerns that may lead to a hierarchy in infant nutrition in which low-income mothers are least able to comply with the health push towards breastfeeding. The undervaluing of nurture and care is even starker in light of the willingness to overlook the health and distributive benefits of breastfeeding entailed in separation strategies.

Pumping and purchasing human milk may be necessary to provide nutrition to infants and relieve pressure from overtaxed mothers, especially in the workplace. But, why are such strategies the main and obvious way to accommodate breastfeeding women in the workforce? Why shouldn't breastfeeding itself be accommodated to some extent? We consider two possible reasons. (23) First, there seems to be an assumption that breastfeeding itself cannot be done at work because infants are a distraction and the workplace cannot properly function in their presence. (24) This assumption is part of the structuring of the workplace to an "ideal worker" who is unencumbered by family care responsibilities. Workplace norms generally do not fathom women breastfeeding at work. Second, there is a concern that breastfeeding accommodations will harm mothers while...