By Benedetta Inguscio, University of Groningen, LLM Public International Law, benedettainguscio@gmail.com

With millions of children dying each year of malnutrition, breastfeeding holds the potential to save more lives than any public health intervention on infant mortality. This unique practice, achievable at an incomparably minimal cost, has also proven to have positive health effects on lactating mothers, protecting them from, inter alia, osteoporosis and breast and ovarian cancer.

Obviously, one might ask why human and legal rights on this matter are even necessary, given that breastfeeding is a basic human practice, vital to infant and maternal health and of great economic value to households and societies. Yet breastfeeding now appears to be a threatened activity in many parts of the world, due to misinformation and misleading marketing practices by breastmilk substitutes, and because a woman’s nurturing role is considered irreconcilable with other roles in the social and work spheres. There is therefore a need to incorporate breastfeeding protection, promotion and support pursuant to the international legal obligations stemming from human rights law.

Recognizing the independent and yet critically interconnected rights, needs and capacities of women and children in the stages of pregnancy, childbirth and lactation, this article conducts a preliminary comparative analysis of the most pertinent sources of international human rights law, investigating their influence in and suitability for providing a framework for the facilitation of global protection of breastfeeding.

• The International Covenant on Economic, Social and Cultural Rights

The ICERCS contains a few provisions which address breastfeeding and its multifaceted character. In addition to the general focus on the family unit, in Article 12 the Convention recognizes the right to “the highest attainable standards of physical and mental health” and calls for infant mortality rate reduction policies and healthy childhood development.[1] The health effects of breastfeeding are well documented and apply to both mothers and children, while the risks associated with the use of breastmilk substitutes have been affirmed in many recent medical studies.[2] For these reasons, the right to breastfeed cannot be thought of as two distinct rights (of the child to be breast-fed and of the mother to breastfeed) but rather as applying to the mother and the child dyad: it essentially means that no third-party can encroach on the relationship between the child and the mother.[3]

• The United Nations Convention on the Elimination of All Forms of Discrimination against Women

Notwithstanding breastfeeding’s sex-specific significance to an international human rights treaty on women and CEDAW’s obligations regarding employment, the Convention fails to identify and protect specific components of maternity as it refers only broadly to the function of reproduction. The Convention’s only direct reference to breastfeeding, or more specifically to ‘lactation’, can be found in Article 12, but the Convention does not recognize any protection for it in the workplace, nor does it include breastfeeding in the prohibited grounds for employment dismissal. The necessity to protect breastfeeding from the baby-food industry’s practices in the setting of maternity wards is also not addressed at all in CEDAW, despite the prominent nature of these concerns during the late 1970s.

• UN Convention on the Rights of the Child

The CRC is certainly one of the most relevant sources of international law for what concerns breastfeeding. Although the right is not directly addressed in the treaty, it may be implied in many of its provisions and generally throughout the entirety of the Convention as a whole.[4] These provisions include the child’s right to life and the obligation for States to “ensure to the maximum extent possible the survival and development of the child”[5], and the right to the highest attainable standard of health.[6] They also include the State’s responsibility to ensure that, in receiving this care, children are protected from harmful practices and discrimination, and that the best interests of children be a primary consideration in all actions concerning them.

The interdependence of the health of the mother and that of the child is also clearly implied in in Art 24.2, which is the only explicit reference to breastfeeding in the Convention and provides that States shall take measures to: “ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents”.

The CRC therefore provides the most suitable legally binding instrument for the protection, promotion and support of breastfeeding. However, in the absence of an effective global sanction mechanism, which targets private corporations as well as States, reliance on domestic implementation of the Convention has proven to be an insufficient solution. Enterprises have systematically circumnavigated international provisions, using their political and economic influence, directly challenging their domestic law or resisting the adoption of enforcement mechanisms.

Discussion on whether a distinct and more effective strengthening of the international human rights framework is required for the protection, promotion and support of breastfeeding is therefore needed. It also appears necessary to reconceptualise the duty-bearers required by this new right-hold (the mother and child as a dyad) and to place legal responsibility on the international community, including on non-state actors (such as transnational corporations and private businesses) that can affect the right to health and nutrition of mothers and infants.

[1] ICESCR art 12

[2] Office of the Surgeon General (US); Centres for Disease Control and Prevention (US); Office on Women’s Health (US). ‘The Surgeon General’s Call to Action to Support Breastfeeding. The Importance of Breastfeeding’. Rockville (MD): Office of the Surgeon General (US), 2011. < https://www.ncbi.nlm.nih.gov/books/NBK52687/&gt/

[3] Brady. M, Baby Milk Action: ‘Breastfeeding is a human right. What does that mean?’ December 2012 last accessed 06/05/2017

[4] IBFAN, ’Contribution to the General Comment on the Child ’ s Right to Health By the International Baby Food Action Network (IBFAN)’, Breastfeeding and the Right of the Child to the Highest Attainable Standard of Health, page 7 https://www2.ohchr.org/english/bodies/crc/docs/CallSubmissions_Art24/InternationalBabyFoodActionNetwork.pdf

[5] CRC Art. 6

[6] CRC Art. 24