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Is it criminal not to breastfeed?

by Rebecca Roache

The Brazilian
model Gisele Bundchen recently—and controversially—
claimed that mothers should
be required by law to breastfeed their babies for the first six months of their
A few days later, she
partially retracted the claim on her blog, insisting that her talk of a breastfeeding law should
not be taken literally.  It was simply a way of expressing her belief in the
importance of doing the best for her child. 
After all, legally enforcing breastfeeding would be madness, right?

according to the Indonesian government. 
It recently passed a law giving babies the right to six months of
exclusive breastfeeding
except in cases where medical problems prevent their mothers from breastfeeding.  Mothers who do not comply face a year in
prison or a fine of 100,000,000 Rupiahs (around £7,100), and those who prevent
mothers from fulfilling their breastfeeding obligations also face punishments.  Scientists and health professionals generally
agree that breastfeeding is healthier for babies than the alternatives (see,
for example,
that not enough mothers do it (see here),
and governments around the world invest huge sums trying to get mothers to
breastfeed.  But is criminalising non-breastfeeding mothers a good idea?

Many people believe it is an outrageous idea.  Indonesia’s legal ruling on breastfeeding
seems to have received scant press coverage, but there has been quite a
backlash against Gisele Bundchen’s comments (including here,
and here).  But, given that parents are already uncontroversially required
by law to fulfill all sorts of obligations to their children
, why
should a legal obligation to breastfeed them be singled out for criticism?

It is not immediately obvious why a breastfeeding
requirement should be objectionable.  One
possible reason is that it places a prolonged and physically demanding burden
on mothers who do not wish to breastfeed.  But even this would not make such a law unprecedented.  In almost all cases, women who are over 24
weeks pregnant are legally prevented from aborting their babies in the UK.  This means that the law requires them to face
the prolonged and physically demanding burden of late pregnancy and childbirth,
whether they like it or not.

Perhaps breastfeeding significantly differs from carrying a
baby to full term in that it is possible for a non-breastfed baby to survive
and flourish, whereas it is not possible for a baby aborted at 24
weeks to do so.  Typically, then, failing to breastfeed a baby inflicts less suffering on it than failing to carry it to full term: this
might justify legally preventing women from aborting their 24+ week fetuses whilst
allowing mothers to choose whether or not to breastfeed.  However, in reality, this is hardly a significant difference.  Babies born as early as 24
weeks can and do survive and flourish—indeed, this is partly why 24 weeks marks
the cut-off point after which abortions are not permitted
—and non-breastfed babies often suffer health problems as a result of not receiving breastmilk (see the links given in
the second paragraph).  Therefore, carrying
a baby to full term, just like breastfeeding, is
good for babies but often not absolutely necessary.  Why, then, should only the former be legally

I suspect that it would be difficult to find a simple and
clear answer to this question.  There are
many parenting practices that are desirable but not absolutely necessary, and
parenting would likely be a joyless business if they were all legally enforced.  Helping children with their homework,
persuading them to participate in sports, encouraging them to keep and care for
pets, and facilitating relationships between children and their grandparents are
all, plausibly, good but not essential for children.  Yet it is far from obvious that they ought to
be legally enforced.  Such legal
intervention may bring benefits for children, but these must be weighed against
the harms arising from the restriction on parents’ freedom to raise their families
as they wish and the familial disruptions likely to occur when parents are punished for non-compliance.  Even without legislation,
however, parents can be persuaded to adopt these desirable practices, via
public health campaigns, the media, cultural changes, and so on.  In such cases—and perhaps also in the case of
breastfeeding—the law is not the best tool for safeguarding children’s

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6 Comment on this post

  1. It is indeed negligent to willfully deny an infant breastfeeding and as a mother and a physician I am always a little shocked when I meet a woman who chooses not to breastfeed–but it’s not practical or consistent with our standards for legislation to make it punishable by law. With respect to “safeguarding children’s well-being”, there are at least hundreds of discretionary actions undertaken and not undertaken by parents which could have even greater negative effects than feeding an infant formula.

    Is it inconsistent, then, for me to go on and say that I do think it’s a violation of civil rights for the state to prevent a woman who desires to breastfeed an infant from doing so by, for example, incarceration without facilitating continued contact with the infant, or at the very least, collection by pumping and delivery of the milk to the infant?

  2. Marco Antonio Oliveira de Azevedo

    “There are many parenting practices that are desirable but not absolutely necessary, and parenting would likely be a joyless business if they were all legally enforced.” But the point, I think, is not that “only parenting practices absolutely necessary for children can be legally enforced”. Parents have a duty of caring their children and a parent who is considered negligent (or imprudent) can be considered as not only “bad”, but (at least in some occidental countries, like mine) also criminal. In Brazil, parents’ legal guardianship can also be withdrawn if there is evidence that they are being negligent in their caretaking practices. But those practices are not only those viewed as “absolutely necessary” for the child. For example, being fed is absolutely necessary for the child. If a mother doesn’t feed her child, the child obviously will suffer. But I think we cannot take, in a strict sense, as being “absolutely necessary” for a child that her mother doesn’t leave him or her to the care of a teenager sister when she, the mother, is out for a party. Could we? Anyway, the mother in this case is certainly being negligent and imprudent. In the same way, if a mother doesn’t take her preadolescent daughter to school regularly and permits that she stays at home only playing or watching television, she can also be considered a negligent mother. But I don’t think we should say in this case that the mother is failing in not providing to her children something that is “absolutely necessary” to her. For we cannot say that the child is in an absolute danger; nevertheless, we can say that she is not receiving “due care”. But what is an example of “due care” is object of discussion. Anyway, in a lot of cases, these faults are taken as reasons for taking parent’s guardianship rights of. A divorced couple can claim, in that case, the guardianship of the child, accusing the other parent of being negligent. And changing the legal guardianship can in those cases be legally enforced by judges. Would a child have a right to a sufficient parental care (something like a “winnicottian sufficient care”)? Probably yes. But, in this case, accepting that children have claims against their parents of sufficient care doesn’t imply that children have claims of whatever we can think would be good or best for them. And it also doesn’t imply that if children have rights to care, fetuses should have the same rights too. Fetuses are not the kind of beings that we care in the same way we take care of our children (plausibly, women take care of their pregnancy and only indirectly take care of their fetuses; nevertheless, in taking care of their pregnancy, women take care of themselves). PS: Maybe late fetuses can be objects of care by pregnant women (see the problem of late abortion discussed by Roger before). But it sounds to me very odd thinking in embryos as objects of due care in the same way we take care of people.

  3. Given the well-documented problems we know are associated with formula-feeding – especially in developing countries, where it truly is a matter of life and death – there’s certainly an argument for making sure that breastfeeding occurs in ALL possible cases. The question is how to achieve that goal, and whilst I do think it is ‘criminal’ that so many babies are formula fed I don’t think that criminalising mothers can ever be a useful part of the solution. (Criminalising formula companies would go much further!)

    It is my contention that every baby has the basic human right to receive the only correct nutrition available – its mother’s milk. Formula milk should go the way of the dinosaur – instead, breast-milk banks would provide milk available by prescription for the tiny percentage of women who truly are unable to feed their children.

    Everyone, and especially women and healthcare providers dealing with pregnancy and birth, should read an article called “Watch Your Language” by Diane Schliessinger, readable online. It talks about the perils of using formula marketing language to promote breastfeeding – and we do, think about it! We say “breast is best”; so do the formula companies. And I don’t think it is the multi-nationals who are misguided on this. Instead, people should be aware that breast is NOT best, nor is it liquid gold or some kind of wonder-food. It is (and just barely, at that) “adequate”. By extension, its well-known huge superiority renders formula milk then recognisable as truly INadequate. If everyone was aware of this I think we would see substantial change in the right direction.

  4. Joni, your point about incarceration is very interesting. In fact, there seem to be so many benefits associated with enabling an incarcerated mother to give her baby her milk, and so few costs, that I wonder whether someone might already have tried to do it – or indeed, whether it might already be common practice.

    Kate, I agree with you about the importance of using the right language to get people to adopt desirable practices, and I wrote a blog post on this very topic a few weeks ago ( The Schliessinger article you mention sounds very interesting, but I haven’t managed to find it online. Would you mind emailing me a link to it (or sending the paper itself, whichever is easier)? My email address uses the format

  5. I do not believe that my feeding my child formula is negligent and those of you that think so must have a guilty conscience. I have been told by a number of people that I am a great mother. My son is 6 months thursday. He’s already crawling,sitting and pulling himself up, and has been doing this since 5 months. If that is negligence because I don’t breastfeed, then I will give you my opinion when I say. Those of you who believe this are ignorant and superficial. Just like it’s a womans choice with everything else, it’s a womans choice what she wants to feed HER baby. Not yours, everyone has an opinion but if you decide to express it. Bring some facts. I’m sure those of you say that its negligent are the same women who work and have their babies raised by a day care, THAT IS negligent. So here’s the shovel lets see you dig yourself out.

  6. Kaleigh – it is only the first two commenters on this blog who have expressed the opinion that feeding babies formula is negligent. I do not think that using formula (or, for that matter, using day care) is necessarily negligent; nor do I think that breastfeeding necessarily makes one a good parent. Good parenting depends on a lot more than what a child is fed.

    I think that it is regrettable that more women do not breastfeed rather than use formula, but I also think it is short sighted to lay the blame for this solely with formula feeding mothers. In many cases there is insufficient support from healthcare professionals and/or from family and friends, and many aspects of our culture are unsupportive of (or sometimes even hostile to) the choice to breastfeed. You are right that ‘it’s a womans choice what she wants to feed HER baby’ – but choices can, of course, be influenced by all sorts of things; and so in the best interests of babies, it is desirable if women are encouraged to breastfeed where possible. It sounds as if your little boy is thriving – but many children don’t, and in those cases the method of feeding may be particularly important.

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