In a bizarre set of questions, the Madras High Court has asked the Central Government to explore the possibility of bringing an Act which makes breast-feeding mandatory for mothers. Why? Because according to Justice Kirubakaran, it should essentially be a fundamental right.
Justice Kirubakaran was hearing the case of a woman government employee on probation, who was not relieved of her services as she had availed maternity leave during her probation period.
In pursuit of her MBBS degree, Dr Ishwarya embarked on a two-year house surgeoncy at the Primary Health Care Centre in Sithurajapuram, Sivakasi. In India, two years of residency is mandatory for completion of the medical degree.
Dr Ishwarya, who joined the PHC as Assistant Surgeon (General) in March 2015, gave birth to a baby on July 4 that year. Following the delivery, she took six months maternity leave before re-joining service in January 2016 and completed her surgeoncy in March 2017. Ishwarya then wrote the post-graduate NEET examination, attended counselling and gained admission into Kilpauk Medical College for her post graduate degree.
However, the PHC refused to relieve her stating that she had not completed her training because she was not entitled to maternity leave as a probationer.
The Madras HC ruled in Dr Ishwarya’s favour and said that “nature does not discriminate whether the woman is an approved probationer or an unapproved probationer with regard to the child birth.”
Raise maternity leave to 9 months
He also asked the Central Government to consider raising the number of days of maternity leave from 180 to 270 days. Tamil Nadu had in November 2016 enhanced maternity leave for women government employees from 180 days to 270 days.
In addition to this, Justice Kirubakaran asked whether the government provided ‘creche facility’ in order for the mother to have easy access to child for breastfeeding purposes. He also prescribes public breastfeeding spaces.
‘Make it obligatory for women to breastfeed’
Following this, in a series of confounding questions to the Centre, Justice Kirubakaran observes, “Why not Central Government bring an Act making obligatory on the part of women to breastfeed, as has been done by UAE government by having mandatory breastfeeding clause in the new UAE Child Rights law?”
The judge also asks the Central Government to invoke Article 249(Power of Parliament to legislate with respect to a matter in the State List in the national interest) and consider the right of the child to be breastfed as an issue of national interest.
Quoting research about the benefits of breast milk, the High Court asks, “Why not this court declare right of newborn to mother's feeding upto six months exclusively and upto 2 years along with substitutions as fundamental right guaranteed under Article 21 of the Constitution and as human right as per international treaties?”
While asking for the Central Government to explore the possibility of making breastfeeding compulsory for women in general, Justice Kirubakaran specifically asks that women government employees who avail maternity leave be made to compulsorily feed for a period of six months at the least.
‘Come out with special insurance for maternity risk’
Operating on the assumption that employers own the bodies of their employees, the Madras HC recommends compulsory breastfeeding by women government employees who avail maternity benefits. While ignoring for a second that this would set a dangerous precedent, the court also quotes research that seems to imply that breastfeeding would bring down the rate of breast cancer.
In recommending an insurance scheme for the same, the judge asks, “Why not the governments come out with special insurance coverage for all women covering maternity risk by making one-time deduction of a specific amount from the salary of the women employees in the first month of pregnancy and the government itself pay insurance premium for non-working women?”
The court also prescribes penalising “officials who are not granting maternity leave to the women government servants in time, when they are pregnant.”
On the issue of population control, he asks if the government could take an undertaking from women to have not more than two children.
He also recommends raising awareness about breastfeeding by roping in celebrities.
The Centre has been ordered to reply to the court by January 22.