Breastfeeding, Women and Work:  
from Human Rights to Creative Solutions 

David Clark, Legal Officer, Nutrition Section, UNICEF, New York 

The talk will highlight the child's right to the highest attainable standard of health and breastfeeding as the principal means to food security, proper nutrition and care. Existing international instruments that protect promote and support breastfeeding will be examined, including their use as tools for advocacy. 

Before we begin to examine and identify the creative solutions to the challenges faced by working mothers, particularly in respect of breastfeeding, I have been asked to talk about the particular human rights that require protection in this context, and the international human rights instruments that can assist us in doing so. 

I will discuss how the international human rights framework and machinery provides an opportunity to engage governments in a dialogue aimed at assisting them fulfill their obligations to protect the rights of women and children. I hope you will bear with me if I go into some detail of the specific Articles of specific Conventions that assist us in this dialogue. We lawyers are often felt to make all too frequent references to legal principles, authorities or regulations in an attempt to intimidate or confuse the client or opponent. Believe me, that is not my aim. I want to provide you with an easy reference to the specific provisions that are actually the keys that open the door to a meaningful and practical approach to the promotion, protection and support of breastfeeding. 

In this context I will not only be looking at the child's right to the highest attainable standard of health. We also have to examine a woman's right to be supported in carrying out her role as a mother, and her right not to be discriminated against in the workplace on the basis of pregnancy or maternity. 

I will thus describe to you how a rights approach provides us with a powerful means of engaging our counterparts in constructive dialogue with a view to eliminating the violation of human rights that occur all around us every day. The international human rights framework includes a series of Conventions that place ratifying States under a binding legal obligation to take appropriate measures to ensure the enjoyment of basic human rights and to bring an end to human rights violations. 

UNICEF has placed the rights of women and children at the very basis of its programming, moving from a "needs-based" to a "rights based" approach to its work. But what does this mean, and how can a rights based approach help all of us to carry out our work more effectively and with a greater outreach? 

Adopting a rights based approach does not mean that everything we have been doing in the past must change. In fulfilling children's needs we have also been fulfilling the rights of those that have been reached through our programmes. What we must do now when planning and carrying out our activities is pay regard at all times to the basic principles of human rights that have been universally recognised and which underpin the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These include the equality of each individual as a human being, the inherent dignity of each and every person, the rights to self-determination, life, health and security of the person. 

Many rights are indeed needs based in origin: the right to the highest attainable standard of health is one example. Where we set ourselves targets of, for example, a 50% reduction in deaths due to diarrhea, we may be seen as fulfilling the rights of those saved. But there are still equally as many children whose rights are violated. And often when such targets are set, it is the hardest to reach, the poorest of the poor, who slip through the net. These are the very ones whose rights require even greater protection. That is not to say that targets and goals cannot function as valuable benchmarks or incentives, but only as part of a serious progressive, effort to reach every last child. 

According to a recent UNICEF paper entitled "A Human Rights Approach to UNICEF Programming for Children and Women", a human rights based approach provides three additional important considerations: 

- the notion of the legal and moral obligation and accountability of the State and its institutions with regard to meeting the basic needs of its people; 

- the affirmation that children and women are subjects of rights, or rights holders, and not objects of charity; 

- The principle that benevolent and charitable actions, while good, are insufficient from a human rights perspective 

I would like us to keep all three of these considerations in mind as we turn to the specific rights and instruments that will guide us in our work this week. But as a lawyer, it is the first of these that interests me - the notion of legal obligation and accountability of the State and its institutions. As parties to international conventions (and let's remember that there are 191 parties to the CRC and 161 to CEDAW) governments can be reminded of their binding legal obligations to protect, promote and support breastfeeding. 

But at the same time, we must also be careful in our advocacy work to avoid the temptation to approach governments in a confrontational manner and simply point to their failings in implementing human rights treaties. This can lead to a fear on the part of authorities that anyone wanting to discuss human rights with them will merely want to criticise their track record. Certainly the Committee on the Rights of the Child does not view itself as a policing body, but rather a forum to assist governments in fulfilling their obligations in a constructive manner. Hence its willingness to recommend implementation of the International Code of Marketing of Breastmilk Substitutes as a practical tool in implementing the CRC. The Code and subsequent resolutions provide a starting point for the development of legislation, and the Committee is able to offer the assistance of UNICEF, WHO and IBFAN in the drafting process. 

Given the vast range of obligations laid down in the Convention, it is not reasonable to expect Governments to take all appropriate measures immediately, and we can thus view our role as assisting them in the progressive task of introducing a framework within which all the rights of women and children will be protected, respected and fulfilled. The more concrete, practical and "doable" the proposals we suggest are, the more likely the Government will give them priority. 

Although I will be dealing mainly with the child's right to the highest attainable standard of health and the need to protect, promote and support breastfeeding as a means to fulfilling that right, I would like to look at some of the other rights that may be threatened when society does not create a supportive environment for breastfeeding. As far as I am concerned, the more articles and conventions we can point to as remaining unfulfilled if the government does not adopt the strategy we are suggesting, the stronger our argument and persuasiveness will be. 

Women and children enjoy the same rights as men. The rights expressed in the basic international human rights instruments - the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both of 1966 but only entering into force in 1976 - apply to all human beings. CRC and CEDAW did not "invent" any special rights. What they did was to recognise that women and children have specific needs that must be met in the protection, respect and fulfillment of those basic human rights. The failure to fulfill these needs have been a cause and a result of the specific forms of discrimination these groups suffer. 

The right to life. Looking back to the earlier international human rights instruments, on which the rights described in the CRC are based, we find the right to life in article 3 of the Universal Declaration of Human Rights: "Everyone has the right to life, liberty and security of the person". This is also to be found in Article 6, paragraph 11 of the International Covenant of on Civil and Political Rights: "Every human being has the inherent right to life. This right shall be protected by the law. No one shall be arbitrarily deprived of his life." 

While the right to life was often felt to mean that the State had merely to protect the lives of its citizens from arbitrary killing by agents of the State, the Human Rights Committee clarified this point in 1982 (Human Rights Committee, General Comment 6, HRI/GEN/1/Rev.2, p.6). The term is not to be interpreted in a restrictive manner, and States should, for example, take all possible measures to reduce infant mortality. The evidence that we have available on the potentially deadly effects of inappropriate artificial feeding and the benefits of breastfeeding provides us with an opportunity to advocate for greater protection, promotion and support for breastfeeding in ensuring the right to life. 

The fact that Article 6 of the CRC recognises that every child has the inherent right to life, and that States Parties shall ensure the survival and development of the child, provides us with a further opportunity to convince States that by protecting breastfeeding, whether by implementing the BFHI, implementing the Code or ensuring that working women can breastfeed their children, they are fulfilling their obligations and preventing the violation of the right to life. 

The right to health. The fundamental human right to health is recognised in Article 25 of the Universal Declaration of Human Rights in terms of the right of every human being to "a standard of living adequate for the health and well-being of himself and of his family". The Declaration goes on to say that "Motherhood and childhood are entitled to special care and assistance." This wording still carries a rather benevolent tone and does not convey the idea of women and children as holders of rights. 

Article 12 of the International Covenant on Economic, Social and Cultural Rights also recognises the right of everyone to the highest attainable standard of physical and mental health, and specifies that States must take steps to reduce rates of infant mortality, and provide for the healthy development of the child. 

As I stated earlier, the CRC and CEDAW were developed because the existing human rights instruments did not reflect the particular needs of women and children that must be fulfilled if they are to enjoy the basic rights laid down in the earlier instruments. Hence, Article 24 of the CRC recognises that all children have the right to the enjoyment of the highest attainable standard of health, but goes on to provide detail as to the components that go towards ensuring the enjoyment of that right. States must take all appropriate measures to pursue full implementation. 

Where Article 24 of the CRC is of particular assistance to us is the it specifically recognises breastfeeding as a component in assuring the child's right to the highest attainable standard of health. Not only are states under an obligation to ensure that everyone in society is educated about the benefits of breastfeeding, but they must be supported in putting this knowledge into practice. 

As I mentioned already, the Committee on the Rights of the Child UNICEF has confirmed that implementation of the International Code of Marketing of Breastmilk Substitutes is an appropriate measure for States to take in implementing Article 24. This provides organisations like UNICEF and partner NGOs and other interested parties with an opportunity to raise this issue with the Committee when reports are presented on implementation of the Convention (two years after ratification, and every five years thereafter). The Committee can then make recommendations that action is taken by the Government concerned. 

Thus, in the case of Lebanon, the Committee has recommended that "the ban of the commercial marketing of infant formula be implemented and that breastfeeding be promoted among mothers in health facilities." (Lebanon IRCO, Add. 54, para. 34). And in the case of Hong Kong the Committee expressed its concern about the apparent insufficiency of measures to encourage breastfeeding. The Committee notes that powdered milk for babies continues to be freely distributed in hospitals, contrary to international guidelines on this matter." 

In addition, I recently received a communication from our country office in Syria that Code implementation has been placed high on the national agenda as a result of feedback from the Committee on the Rights of the Child. 

Building on these successes, we must remind states, and the Committee, that the marketing of breastmilk substitutes is only one part of the picture. Governments must create an environment in which breastfeeding is supported at all levels. Implementation of the BFHI is obviously another constructive measure that should be pursued. But if working women face conditions that prevent them from breastfeeding their children, or make it so difficult that they have to make huge sacrifices to do so, the Governments are not taking all appropriate measures to implement the rights under Article 24. 

Article 24 of the Convention also requires States to combat disease and malnutrition through, inter alia, the provision of adequate nutritious foods. Article 27 recognises the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development, and requires States Parties to assist parents in implementing this right. In cases of need, Governments should provide material assistance and support programmes, particularly with regard to nutrition. 

These principles can be seen within the context of the right to food, which is recognised in Article 11 of the International Covenant on Economic, Social and Cultural Rights (the fundamental right of everyone to be free from hunger). Since we have evidence that the use of breastmilk substitutes may lead to malnutrition - indeed we are all aware of the term "commerciogenic malnutrition" - failure to protect infants from this means that the right to food is not being fulfilled. 

Perhaps CEDAW is not as specific about breastfeeding rights as one might have hoped. But I believe that there is a historical reason for this. CEDAW was drafted in the late 70s, when the international community was really only beginning to wake up to the dangers of artificial feeding and the fact that breastfeeding had been undermined by commercial promotion, poor hospital practices and neglect. The benefits of breastfeeding to the health of infants and mothers were not widely appreciated or spoken about among the groups involved in the drafting of CEDAW. The Joint WHO/UNICEF Meeting on Infant and Young Child Feeding, which many view as the starting point for international awareness of the need to protect, promote and support breastfeeding, was only taking place at arounf the time that CEDAW was being adopted. It is thus understandable that so little attention was paid to breastfeeding per se. However, this Convention still provides us with some guidance and opportunities to protecting the rights of working mothers. 

Article 5 provides that State Parties must take appropriate measures to "ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases." 

This common responsibility should not only apply in the home. The burden of childrearing should not fall on women's shoulders when they return to work. In most cases breastfeeding will contribute to the realisation of the child's rights to life, health and food. Breastfeeding will be in the best interests of the child and in breastfeeding their children, women are carrying out a vital social function. This component of the nurturing process can indeed only be fulfilled by women, and society should in turn recognise this by providing an environment that is supportive of breastfeeding. This can only be done by providing adequate leave post-partum, and facilities and breaks for feeding or expressing milk once there is a return to work. The enjoyment of these conditions should not lead to discrimination and the woman should not have to bear the economic brunt of child-rearing in terms of lost or reduced wages. 

Under Article 11, States Parties must take measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 

The article goes on to state that : 

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 of 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 the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; 

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised repealed or extended as necessary. 

Article 12(2) states that: "Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to 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." 

So we can see that CEDAW does refer to maternity rights, and there are thus corresponding duties. While it is not terribly specific as to the precise nature of the legislation that should be enacted or services that should be provided there is an obligation on States parties to do something in all of these areas. Our task this week is to identify the practical solutions that will protect these rights. Once identified, the human rights framework provides us with an opportunity to approach governments and provide them with the practical measures they should adopt to put an end to the violation of women's and children's rights as a result of inadequate maternity protection measures. 

There are other international instruments that can assist us in advocating for breastfeeding rights. The international community has adopted a number of declarations over the years that speak of the need to protect, promote and support breastfeeding. While the Conventions referred to carry binding legal obligations and duties when ratified, declarations are an expression of international consensus on a particular issue. They very often indicate a movement that will eventually result in the adoption of a binding international treaty. Although not binding in themselves, they must be viewed as carrying some degree of influence, at least of a moral nature. This influence is obviously even greater if the state in question was represented at the gathering in question and participated in the adoption of the declaration. 

Probably the declaration of greatest interest for our purposes is the Innocenti Declaration on Protecting, Promoting and Supporting Breastfeeding, adopted in Italy in 1990. This declaration put forward a global goal for optimal maternal and child health and nutrition - all women should be enabled to practice exclusive breastfeeding and all infants should be fed exclusively on breastmilk until about six months of age. Thereafter children should continue to be breastfed, while receiving appropriate and adequate complementary foods, for up to two years of age or beyond. This declaration set out four global operational targets: o establishment of a national breastfeeding committee o implementation of the Ten Steps in all maternity facilities o implementation of all articles of the Code and subsequent WHA resolutions o enactment of imaginative maternity legislation 

These goals were not attained by 1995 as originally hoped, and the fourth one is the one in respect of which we have seen the least progress. But the Innocenti declaration has been extremely influential in changing the world scene. It led to the development of the joint WHO/UNICEF Baby-Friendly Hospital Initiative, which now boasts over 13,000 Baby-Friendly maternity facilities around the world. The Innocenti Declaration also continues to form the basis of UNICEF's infant and young child feeding policy. 

The Plan of action adopted at the World Summit for Children in 1990 advocated for the promotion, protection and support of breastfeeding and complementary feeding practices with the goal of the "empowerment of all women to breastfeed their children exclusively for four to six months and to continue breast-feeding, with complementary food, well into the second year." 

In 1992 the World Declaration and Plan of Action for Nutrition pledged "to reduce substantially within this decade . social and other impediments to optimal breast-feeding." 

Article 30 recognised that "Breastfeeding is the most secure means of assuring the food security of infants and should be promoted and protected through appropriate policies and programmes." 

Article 33 declares that "Governments, in cooperation with all concerned parties, should . prevent food-borne and water-borne diseases and other infections in infants and young children by encouraging and enabling women to breast-feed exclusively during the first four to six months of their children's lives." 

The 1994 International Conference on Population and Development in Cairo recognized breastfeeding as an important child survival strategy, while the 1995 Beijing Platform for Action of the Fourth World Conference on Women called for the promotion of breastfeeding, implementation of the International Code and the facilitation of breastfeeding by working women. 

In conclusion, by adopting a human rights approach we are able to base our claims that action be taken on the moral and legal accountability of the State. There is a whole range of international human rights instruments that we can refer to in our discussions with Governments, reminding them of their obligations to protect, promote and support breastfeeding. This includes the protection of the breastfeeding rights of working women. The practical strategies that we will identify during the course of the week can thus be presented as concrete means of fulfilling those obligations and bringing a halt to the violation of human rights. I hope that you have not be put off by the legalistic way in which I have presented the various relevant provisions from the many Conventions and Declarations. I hope that I may have inspired you to find time to look at them and see for yourself the relevance they have to our work, and the opportunity they provide us with to help improve the conditions of children and women everywhere.