The Mommy Wars and Breast Milk
Last month, we saw the revival of the “Mommy Wars” once again. Triggered by the publication of Leslie Bennetts’ book, The Feminine Mistake, major newspapers, magazines, and blogs debated Bennetts’ premise that mothers who leave the workplace to raise children, even temporarily, risk significant economic losses in the future. As commentators debated the pros and cons of women’s life choices, and the effects on their children, there was little discussion of an issue that may have a much greater impact on children—outsourcing of breast milk. Yes, you read it right the first time. Although women have always breastfed other women’s children, as Time magazine recently reported, only now is there a clear for-profit market in human breast milk in the United States.
Studies have shown that breast-fed babies enjoy numerous health benefits which infant formula simply cannot replicate. Clearly, breast milk is best but the question is “whose breast milk?” An infant might benefit most from his own mother’s milk, but there is evidence that another woman’s breast milk is preferable to infant formula. Some mothers are physically unable to provide their children with their own breast milk, while others choose not to because, according to Time, they have “high powered careers.” If the market for human breast milk continues to grow, this latter group (although small) might find itself in the center of the Mommy Wars.
Women who purchase human breast milk are generally wealthier than the women they employ to nurse their children. Although at a salary of $1,000 per week, wet nurses earn more than most nannies, and demand for their services is increasing, some people are uncomfortable with the class and racial implications of this line of work. Let’s not forget that during slavery, Black women often nursed their masters’ children.
However, as Professor Waldeck argued in her prescient article, Encouraging a Market in Human Milk, society has an interest in ensuring that as many children as possible receive human milk. While some women already donate breast milk (for free) to milk banks across the country, Professor Waldeck argues that the prospect of financial compensation is likely to motivate more women to donate, thereby providing greater numbers of children with the health benefits of breast milk.
What does all of this have to do with law? We first have to ask whether states should regulate a market in human breast milk, or more specifically, who can be a wet nurse? Which employment laws would apply? How much trust are we willing to place in the agencies that match wet nurses and families in the same way that they place nannies, chauffeurs, and personal chefs in private homes? Do the reasons why a woman hires a wet nurse matter? In the surrogacy context, commentators have suggested that women who are able to carry a child to term should not be allowed to contract with a surrogate for convenience. Should women have to similarly show that they cannot breast-feed before they are allowed to hire a wet nurse?
I don’t have any answers, only questions. I must admit that I am particularly uncomfortable with the potential exploitation of poor women who have few options. Then I think of the African-American woman Time interviewed who wet nursed ten infants over a seven year period to put her own two children through college. She stated that her job is “fulfilling” so I am hesitant to question her choices. Just as important, if the law prohibits women from selling their breast milk or wet nursing services, will the government help them find jobs that will enable them to provide their families with an adequate standard of living? Somehow, I doubt it.