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 hould a woman have to choose between paid
employment and the health of her infant? According to Michelle
Poirier, of Victoria, BC, the answer is an unequivocal no. Michelle's
complaint of sex discrimination against her former employer,
the BC Ministry of Municipal Affairs, is slowly working its way
through the legal system. She was refused permission to breastfeed
her baby at work, despite previous accommodation during lunch
hours. "I was breastfeeding for health reasons, and working
for economic reasons, just like [thousands] of other Canadian
women. No woman should have to choose between breastfeeding her
child and paid work." (For the
rest of Michelle's story, click here.) |
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Obviously, the question is why human and legal rights are even needed, given that breastfeeding is a basic human activity, vital to infant and maternal health, and of immense economic value to households and societies. Yet breastfeeding remains a threatened activity in many parts of the world, often because of misinformation, or because it is seen to be incompatible with other roles women choose or are forced to play. Clearly, something is wrong in the way social life, work, and women's nurturing role are organized. Dominant social values, structures and institutions, which are rapidly spreading across the globe, often exploit and undervalue women's physical needs, their work and reproductive contributions. Hence the need to include the protection of women's right to breastfeed as a component of human rights.
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A woman's right to breastfeed her child is a human right. Although apparent, it is when a women wishes to exercise this right that she may encounter discriminating structures, attitudes and practices.
Societal
structuresWorkplace policies in many settings prohibit women from access to employment, or allow inadequate or no maternity leave to nurture her newborn and young infant, or permit no time or facilities to express breastmilk for feeding by a caregiver. In the Maquiladora "free trade" zones of Mexico, maternity legislation is not enforced. According to human rights groups, women are tested for pregnancy during hiring, women are not hired if pregnant, and pregnancy is a cause for dismissal. In Canada the Labour Code legislates 17 weeks leave with 15 weeks paid at 60% of average weekly earnings plus the option of 10 weeks of unpaid, parental leave; however workplace breastfeeding regulations are not yet in place.
Societal
attitudesAttitudes and power structures that permit male dominance over women's breasts, has reached such excess in North American society that breastfeeding can be considered "obscene", spawning US state legislation that expressly excludes breastfeeding women from obscenity laws. Women frequently report harassment when breastfeeding in public or are denied access to commercial places. Recently in Montreal, Canada, a young mother was awarded $2500 in damages in an out of court settlement, when the Quebec Human Rights Commission ruled that she had been discriminated against when asked to leave a shopping mall for breastfeeding her child.
Commercial
interferenceCommercial interference from the infant feeding products industry, especially the infant formula companies, continues to undermine breastfeeding in many counties. In Thailand for example, the breastfeeding rates of urban women have declined to extremely low levels. Although regulations exist prohibiting promotions by the infant formula industry, women birthing in private hospitals are separated from their infants after birth and their infants artificially fed with donated supplies. By the time of discharge their infants are fully bottlefed and breastfeeding is difficult to establish. Commercial interference prevails in many parts of the world, since the 1981 passage of the International Code of Marketing of Breast-Milk Substitutes.
Inadequate
governmental policiesGenerally governments have been slow in realizing breastfeeding rights and implementing policies to ensure those rights. Maternity leave legislation, labour regulations facilitating workplace breastfeeding and limiting the promotional activities of the infant feeding industry are all available legislative choices for government. Recommendations from various UN bodies continue to be made to governments to facilitate women's ability to combine child nurturing roles and participation in economic and social activities. More often than not governments ratify such initiatives, but do little to implement such policies.
Governments have the responsibility to remove any and all obstacles to successful breastfeeding and can do this by following ratification with appropriate legislation and monitoring, to realize the various UN rights conventions.
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Convention
on the Elimination of all Forms of Discrimination Against Women
(CEDAW)CEDAW, a UN human rights convention adopted in 1979, and since ratified by most countries (Canada, ratified in 1982; US signed in 1980 but didn't ratify), specifies that to discriminate against women on the basis of their reproductive status (pregnant and lactating) is to discriminate against women. Since only women can be pregnant and breastfeed, to discriminate against a pregnant or breastfeeding woman is to discriminate on the basis of sex.
On combating discrimination
Article 4(2) Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity, shall not be considered discriminatory.
On modifying social and cultural patterns
Article 5(b) States Parties shall take appropriate measure: To ensure that family education includes proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing of their children, it being understood that the interest of the children is the primordial consideration in all cases.
On equality in employment and labour rights
Article 11(2) In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life
On equality in access to health care
Article 12(2) States Parties shall ensure women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Convention
on the Rights of the Child (CRC)The Convention on the Rights of the Child adopted by the UN General Assembly in 1989, (ratified by Canada, signed by the US but not ratified) correspondingly recognizes the importance of breastfeeding as an essential component of children's rights to optimal health and development.
Article 24(1) States Parties recognize the right of the
child to the enjoyment of the highest attainable standards of
health
(2) States Parties shall pursue full implementation of this
right and in particular shall take appropriate measures: (d) to
ensure appropriate pre-natal and post-natal health for mothers;
(e) 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
International
Labour Organization (ILO)Convention on Maternity Protection No. 3
Passed in 1919, outlines standards needed for women in industry and commerce recommended:
Convention on Maternity Protection No. 103
In 1952 maternity protection was expanded to include women workers at home and increase benefits:
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The International Code presents governments with another measure to protect the human rights of women and children to the highest attainable standard of health. As a human rights instrument, the International Code provides governments with a very specific set of policies to benefit a particular target population; in this case pregnant women and new mothers. Implementation of the International Code into national level legislation provides opportunity to move towards comprehensive breastfeeding legislation that is pro-active in removing all obstacles; and holds social and economic actors accountable rather than the reactive status quo.
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Employment
Standards LegislationProvides 15 weeks paid maternity leave at of 60% of wages. An additional 10 weeks of parental leave is available (some provincial variations may exist). Job security and status is protected. Provisions for worksite child care and breastfeeding breaks do not as yet exist.
Canadian
Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms protects against discrimination on the basis of sex.
Section 15(1) states:
Every individual is equal before and under the law and has
the right to equal protection and equal benefit of the law without
discrimination and, in particular without discrimination based
on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
Provincial
Human Rights CodesProvincial Human Rights Codes Protect against discrimination on the basis of sex.
UN
ConventionsCEDAW and the CRC have both been ratified by Canada.
International
Code of Marketing of Breast-Milk SubstitutesThe Code is endorsed by Canada at the World health Assembly but not legislated and there is no penalty if violated.
The case of Michelle Poirier versus the BC government is the first case to test the human rights code on workplace policies in relation to breastfeeding women and discrimination on the basis of sex.
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