In 1981 the United States Supreme Court declared, “Breastfeeding is the most elemental form of parental care. It is a communion between mother and child that, like marriage, is ‘intimate to the degree of being sacred,’ Nourishment is necessary to maintain the child's life, and the parent may choose to believe that breastfeeding will enhance the child's psychological as well as physical health. In light of the spectrum of interests that the Supreme Court has held specially protected we conclude that the Constitution protects from excessive state interference a woman's decision respecting breastfeeding her child.” Dike v. School Board, 650 F.2d 783, 787 (former 5th Cir. 1981), internal citations omitted.
In that case, a kindergarten teacher had asked her husband to bring their baby to her every day during her lunch period so that she could nurse. The school said she couldn’t do that because she was violating a school policy prohibiting employees’ children from coming on campus since doing so might subject the school to liability if an accident occurred. The school also said she could not nurse her child in her car because of its policy forbidding employees from leaving the building during school hours. She ended up switching the baby to formula and then when the baby displayed allergies eventually had to take unpaid leave time for the rest of the school year to breastfeed. Fortunately the court hearing this case held that breastfeeding was a constitutional right.
This did not give mothers a carte blanche to breastfeed anywhere and everywhere. First, as this case went on to say, even when there are constitutional rights, if the governmental entity (such as the school) has a legitimate reason for evenly enforcing a policy (such as no teachers’ kids at school) it could still legally do so. Second, what many people misunderstand about constitutional rights is that they simply mean that the government cannot infringe on that right. So, for example, if she had been a kindergarten teacher at a private school she would not have had a case under constitutional law. Similarly, if you are nursing on a bench in a public park and a state police officer asks you to leave, this may be a violation of your constitutional rights. If you are in a privately owned store and the manager asks you to leave, you cannot sue him under the constitution for it (though you may have other rights).
In Georgia, however, state law takes federal case law even further.
“The breast-feeding of a baby is an important and basic act of nurture which should be encouraged in the interests of maternal and child health. A mother may breast-feed her baby in any location where the mother and baby are otherwise authorized to be.” O.C.G.A. § 31-1-9
A mother may breastfeed her baby in any location where the mother and baby are otherwise authorized to be. It’s the law. Are you legally entitled to breastfeeding while riding a super duper crazy roller coaster? No, your baby is not authorized to be on it. Do you have a legal right to breastfeed on a bench in the mall?
In terms of breastfeeding in the workplace, in Georgia, the law is that employers may (but do not have to) provide a private location and opportunity (i.e. a break) to express milk. O.C.G.A. § 34-1-6. The law encourages but does not require it. In California and New York, by contrast, employers must provide this accommodation.
In terms of nursing in public, rest assured that exposing a breast for the purpose of breastfeeding does NOT constitute the crime of public indecency in Georgia. In many states, public indecency statutes technically criminalized breastfeeding in public because of how the statutes were worded. Showing a breast or a nipple was a crime. Fortunately, because this was obviously not the intent of the laws, many states have passed modifications specifically exempting breastfeeding from indecent exposure laws. In Georgia, the broad law mentioned above says that mothers may breastfeed wherever they are authorized to be. O.C.G.A. § 31-1-9. The law authorizes you to do it, so you cannot legally be convicted for breastfeeding in public.
If you have run into problems for breast-feeding your child in public or at work, we can discuss the situation with you to determine whether your claim is actionable. Very few lawyers in the country have specific expertise in this area of the law, but here at TW&A we have that experience. To contact our law office, call (706) 621-4665, or contact us by e-mail.
