Memorandum submitted by Elaine Smith MSP (E 51)


As the author of the Breastfeeding (Scotland) Act 2005 (private members bill), I am writing to give you my thoughts on proposals to extend protection for breastfeeding mothers, via the Equalities Bill.

The health benefits of breastfeeding are widely recognised. I therefore welcome the legislative proposals on protecting the rights of women to breastfeed in public but I am concerned by reports that this protection may only extend to the first six months of a child's life. I am consequently writing to all committee members to ask that you support proposals that give mothers and babies protection to breastfeed in public, with either no time limit on that right or the same as the law in Scotland. If you are so minded, this may then require an amendment by the committee or an individual member.

Having reviewed the complexities of current legislation it would appear strange to have a situation where breastfeeding mothers would be protected under the Breastfeeding (Scotland) Act 2005 when feeding a child up to the age of two years, on one side of the border, but have that protection removed on entering England. Therefore, I would urge that this anomaly be removed.

When drafting my own legislation, the fact that my bill provides legal protection only for children up to the age of two caused some controversy. It is regrettable that an age had to be introduced at all as ideally my legislation would have taken an approach based on antidiscrimination. However, the Scottish Parliament did not have the necessary powers to allow such a route to be pursued.

I was, therefore, obligated to make use of criminal law which necessitated clear, unambiguous and precise definitions as the bill created a criminal offence. After much deliberation within my steering group, and some dissent, the age limit of two years was inserted in the bill because the World Health Organisation recommends that children be breastfeed up to two years and beyond. It therefore seemed a logical and reasonable age to stipulate for the purposes of legal protection.

Further, a baby of over two years can normally be given other food and drink when in public if necessary without this causing undue distress. There are of course exceptions to this and therefore it was important at the time of the legislation to make it clear that the status quo would prevail with regard to older children in that they still had a right to be breastfed in public but that right was not covered by the criminal sanctions of the bill.

It was never my intention, nor the intention of the legislation, to make any judgement on the appropriate weaning age for children as that is a very personal decision for mother and child. Indeed, the norm in this regard varies considerably in different countries and cultures. This issue also caused the most controversy during the stage 3 proceedings in Parliament.

The intention was clearly to provide protection and empowerment to send an unambiguous message that breastfeeding is normal, natural, nurturing behaviour and ought to be celebrated not segregated in society at large. Prior to the passage of my private members bill, small babies could, and were, isolated or ejected from some public places and licensed premises without any meaningful legal recourse. Mothers needed their right to breastfeed, something that the state actively encourages, to be protected by the law. This protection can provide reassurance, boost confidence and help to promote breastfeeding, thereby assisting in changing attitudes and impacting positively over time on how society as a whole views breastfeeding.

Legal protection also helps to underpin the sterling work of health professionals in the NHS and provides encouragement to Government to focus on the ways in which breastfeeding can be better supported and encouraged. Further, given the low levels of breastfeeding in areas of high deprivation, legal protection helps widen access and provides an important tool to help tackle the social exclusion and poor health that is linked to poverty and deprivation throughout the UK.

Societal attitudes have to be helped to change and I believe that clarification and strengthening of the law in this area can only assist in that regard. The provision of legal protection for breastfeeding of children, without age restriction is, I believe, reasonable, sensible and necessary for the reasons I have outlined but at the very least I would urge you to reject the suggestion of a six month limit and instead standardise the age limit to be the same as in Scotland.

I would be most grateful for your consideration in supporting this measure but have kept my points deliberately short as I am well aware of the time constraints on Committee members. Having grappled with this issue in some depth at the time of pursuing my own legislation, I would be happy to meet with the committee, formally or informally, if you thought that helpful to your deliberations.


Thank you for your time in taking into account my concerns.


June 2009