4.  The right to breastfeed — Te tika ki te whāngai ū

What is the right to breastfeed?

Breastfeeding is an activity as old as the human race itself, but the issue of whether a woman has the right to breastfeed is increasingly a focus of human rights debates. A child's right to be breastfed is also linked to the right to food. Women's increasing and more continuous participation in the labour force (even during childbearing and breastfeeding years) and a steady number of complaints and enquiries to the Human Rights Commission have heightened the need to examine carefully how New Zealand is achieving the right to breastfeed in the light of international standards.

International context

International human rights standards — Nga whakaritenga taumata o te ao

The human right to food and nutrition, including breastmilk, is well established in international human rights principles and law ( Kent , 2004). The UDHR (Article 25(1)), ICESCR (Article 11), and CEDAW (Articles 11, 12 & 15) assert the rights to adequate standards of living, food, freedom from hunger, and protection from discrimination because of the responsibilities of motherhood. UNCROC sets out the rights of children to proper nutrition and health care and highlights the importance of their parents' education on 'basic knowledge of child health and nutrition [and] the advantages of breastfeeding' (Article 24).

Article 10 of the ILO Maternity Protection Convention 183 gives a breastfeeding mother in paid employment 'the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child'. These breaks 'shall be counted as working time and remunerated accordingly'. Recommendation 191, which supplements Convention 183, strengthens this right by supporting the establishment of breastfeeding facilities at or near the workplace.

New Zealand has not ratified this Convention, partly because it establishes a minimum of 14 weeks' paid parental leave. The Government may consider ratifying this Convention after the enactment of the Paid Parental Leave Amendment Bill, which proposes to progressively deliver the 14-week standard for eligible working women. However, the Bill does not address breastfeeding.

As well as direct references in some international human rights standards to the right to breastfeed, there are some indirect references. For example, the right to food and nutrition is strongly implied and reaffirmed at many different levels. Several non-binding international declarations also support these rights for infants and children. Adoption of the International Code of Marketing of Breastmilk Substitutes by the World Health Organisation in 1981, followed by the Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding (World Alliance for Breastfeeding Action, 1990), demonstrated an emerging international consensus on the importance of promoting breastfeeding. The 1990 World Summit for Children called for 'Empowerment of all women to breastfeed their children exclusively for four to six months and to continue breastfeeding, with complementary food, well into the second year'. The Beijing Platform for Action (United Nations Division for the Advancement of Women, 1995) called for public information on the benefits of breastfeeding, implementation of the International Code of Marketing of Breastmilk Substitutes , and the encouragement of breastfeeding by working women.

In 2002, building on international achievements, the World Health Organisation developed a Global Strategy on Infant and Young Child Feeding that detailed how the child's right to breastfeed could be realised through the activities of Governments, non-governmental agencies, health organisations, mass media, and families. This Global Strategy called for Governments to formulate, implement and evaluate national policies on the nutrition of infants and young children, and to collect information on feeding policies and practices.

New Zealand context

There is no specific law in New Zealand that deals with the right to breastfeed, but legal protection for the right is available in some circumstances, such as proven disadvantageous treatment based on direct or indirect sex discrimination. Both the HRA and the Employment Relations Act 2000 contain anti-discrimination provisions that apply to breastfeeding women. While there have been some complaints of discrimination to the Human Rights Commission which have been upheld, the extent to that anti-discrimination legislation protects breastfeeding women has not been tested in New Zealand courts.

The most frequent complaints and enquiries to the Commission involve mothers being asked to leave cafes, pre-schools, museums, and other public places while breastfeeding their babies. In 1989, two women complained that they were not permitted to breastfeed on the premises of a Nelson restaurant.[8] The Commission's Complaints Division determined that not permitting breastfeeding was a form of sex discrimination because the complainant was affected by gender and one other factor, namely, the act of breastfeeding. At the time this was described as 'gender plus' discrimination.

In a 1994 decision,[9] the Commission commented, 'should someone not wish to go into the family room in future to breastfeed but prefer to stay in the other room, they must be permitted to do so.' The Commission observed that the complaint 'was considered as sex discrimination under the Human Rights Commission Act 1977'.

Ensuring that the right to breastfeed is realised involves considering more than anti-discrimination legislation. Non-legislative interventions (such as the strengthening of promotional activities through targeted funding) need to be considered and monitored for effectiveness. If other interventions prove necessary, overseas experience may be helpful. For example, 30 of the 50 States of the United States of America have enacted legislation relating to the right to breastfeed in public or at work, [10] and Scotland is currently considering legislation to safeguard the right of a child to be fed milk in public by bottle or breast. [11]

New Zealand today

Although there is no particular law on the right to breastfeed, the right is given meaning in a variety of ways through measures to respect, protect and promote the right to breastfeed.

The promotion of breastfeeding through education, advocacy, and policy development is important to ensuring that the right has meaning in everyday life.

The Ministry of Health has initiated a number of programmes to encourage and promote breastfeeding, including:

• the development of a Breastfeeding Action Plan that aims to increase the breastfeeding rates of Maori, Pacific, and other New Zealanders by strengthening and monitoring existing promotional initiatives, providing information on breastfeeding, and improving strategies in hospitals
• the creation and funding of the role of a full-time Breastfeeding Advocate (administered by the Women's Health Action Trust)
• the establishment of a National Breastfeeding Authority, which is currently setting up a National Breastfeeding Committee to direct and advocate for breastfeeding activities across all sectors.

Other activities to promote breastfeeding include distributing information, ensuring the provision of good-quality advice for health practitioners and institutions that work in this area, and supporting the wide acceptance of the benefits of breastfeeding in society. These activities are also being supported by some employer groups and through joint projects.

For example, in 2002, Business New Zealand, the Employment Relations Service, the EEO Trust and the Council of Trade Unions worked together with the Human Rights Commission to release Employers' Guidelines for the Prevention of Pregnancy Discrimination (Human Rights Commission, 2002). The guidelines encouraged employers to provide breastfeeding breaks and accommodation for breastfeeding mothers when they return to work. Other guidelines have also been developed by the EEO Trust. In 2004, the Employment Relations Service will begin developing a code of practice to support the provision of breastfeeding breaks and facilities in workplaces.

The number and range of complaints and enquiries to the Human Rights Commission suggest there are still stigma and stereotypes associated with breastfeeding. Since 2000, the Commission has received an increasing number of enquiries relating to breastfeeding. Some involve employer resistance to the idea of a woman expressing milk or taking breastfeeding breaks at work. More complex enquiries relate to child custody disputes and either the mother or the father having access to a breastfeeding infant.

Conclusions — Ngā whakamutunga

The international human rights standards are still evolving and the implications of the rights of children to be breastfed have not yet been fully assessed. Some complaints about disadvantageous treatment relating to breastfeeding have been upheld by the Human Rights Commission as sex discrimination. The broader issue of how the right to breastfeed is best given meaning has not been fully explored, although some initiatives have addressed the need for greater social acceptance of breastfeeding. Further work is needed to assess how best to give effect to this right.

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