Moms cry out for protection of their right to breast-feed.

Does an employer have a say in how a mother nurtures her child? Does society? Is a mother's civic duty more important than her responsibility to provide her child the best nourishment possible? Can a custody dispute force a nursing mother to wean her baby?

According to several nursing moms, the answer to all those questions is "yes." Consider Donna Cok's case against her employer, Advanced Lifeline Services (ALS). Cok, a respiratory therapist at a Spokane, Washington, nursing home, brought a sex discrimination and wrongful termination claim against ALS in 1997 because the company forced her to choose between breast-feeding her eight-week-old daughter, Mikaela, and keeping her job.

The primary breadwinner in her home, Cok returned to work after a two-month maternity leave, intending to have her husband bottle-feed Mikaela pumped breast milk while she worked her usual 12-hour shift. But on Cok's first night back on the job, the baby would not take the bottle. Cok decided she would have to nurse Mikaela in the family's van during her 30-minute unpaid lunch break and two 10-minute breaks, and at other times as needed. She offered to wear a beeper so nursing home staff could contact her during feedings and punch her timecard to show she was not shortchanging her shift, but Cok's supervisor refused.

ALS so disapproved of Cok's plan to feed Mikaela at times other than her scheduled breaks that it placed her on per diem status, which meant she would be called only to substitute for other workers who were absent. ALS claims it did not fire Cok, but Cok says that in two months' time, she was not called to work. (Dateline NBC: Lactose Intolerance (NBC News, May 12, 1999), available in 1999 WL 6208011.)

In June, a Spokane County Superior Court jury returned a verdict in favor of ALS, saying that Cok did not prove she had been discriminated against on the basis of her gender. Only 2 of the 12 jurors found in her favor on the wrongful termination claim. (Cok v. Advanced Lifeline Services, No. 97-2-04973-8 (Wash., Spokane County Super. Ct. June 10, 1999).)

"Donna Cok's case is the most outrageous of them all," said Liz Baldwin, who practices law in Miami. "Cok lost her case on a technicality. Her life was turned upside-down, and now she's out on her ear."

Baldwin serves as legal adviser to La Leche League International, an Illinois-based organization that promotes breast-feeding. "Breast-feeding is not a lifestyle choice. It's a health choice for the mother and the baby," she said. "In the United States, breast-feeding has been viewed negatively. Now the trend is to encourage a mom to make a healthy choice that benefits her, her child, her family, her employer, and society."

In 1997, the American Academy of Pediatrics released a report on the benefits of nursing. According to the academy, there are "compelling advantages ... from breast-feeding.... These include health, nutritional, immunologic, developmental, psychological, social, economic, and environmental benefits." For example, breastfed babies have decreased incidence of gastrointestinal, respiratory, and ear infections and enhanced cognitive development, the report said. Nursing mothers run a lower risk of developing ovarian and breast cancers than mothers who do not nurse.

The report also stated that "exclusive breast-feeding is ideal nutrition and sufficient to support optimal growth and development for approximately the first six months after birth.... It is recommended that breast-feeding continue for at least 12 months, and thereafter for as long as mutually desired."

According to the report, a family can save more than $400 a year if the baby is breast-fed instead of given formula, and society and employers benefit from reduced health care costs and fewer parental absences from work to care for sick children. (American Academy of Pediatrics, Breast-feeding and the Use of Human Milk, 100 PEDIATRICS 1035 (1997), http://www.aap. org/policy/re9729.html.)

Despite these findings, nursing moms are still struggling to have their right to breast-feed--and their babies' right to be breast-fed--recognized.

* This spring, three Ohio women sued Wal-Mart Stores, Inc., after they were told to stop breast-feeding in the store or to feed their babies in a restroom. Their attorneys are preparing the case for trial next summer. (Derungs et al. v. Wal-Mart Stores, Inc., No. C-3-99-190 (Ohio, Montgomery County C.P. Ct. filed March 31, 1999), removed (S.D. Ohio filed May 3, 1999).)

* Employees at a Los Angeles Borders bookstore told Kerry Madden-Lunsford, who was breast-feeding her daughter under her sweater in the children's section of the store, to either stop nursing, move to a restroom, or leave the store. Madden-Lunsford filed suit in April, claiming her civil right to breast-feed had been violated. The parties are negotiating a settlement. (Madden-Lunsford v. Borders Group, Inc., No. BC209426 (Cal., Los Angeles County Super. Ct. filed Apr. 28, 1999).)

* Hillsboro, Oregon, mom Tawni Johnson had been called to serve on a jury twice--once in November 1997, when she was pregnant and having complications, and again in October 1998, when her son, Brady, was eight months old. She deferred both times under Oregon state law, which allows a person to defer jury duty twice. In April, Johnson--who put her career on hold after Brady was born so she could nurse him for two years and also avoid the cost of day care--fought to be excused from jury duty a third time so she could continue breast-feeding.

The court ordered Johnson to appear for duty or face contempt charges. After she served a week in a jury pool, the court reconsidered her circumstances, found she had made an effort to serve, and excused her. (Hillsboro Nursing Mother Makes Effort, Gets Excused from Jury Duty, Portland Oregonian, Apr. 19, 1999, at B3.)

Breast-feeding and divorce

According to La Leche League, most lawsuits involving breast-feeding take place in the private arena of family law and center on custody and visitation decisions. The league said there are two main issues of concern in family law cases that involve nursing mothers--the importance of breast-feeding to the child's physical health and the possible psychological harm to the child from being separated from the mother. The challenge, Baldwin said, is drafting a visitation or custody plan that promotes the child's bond with the father and does not separate the child from the mother for long periods of time.

"If the courts are led to believe that they are being asked to pick between preserving the breast-feeding relationship and encouraging the father's bond with the child, they will absolutely favor the father's bond," Baldwin said. Some judges protect the father-child relationship by requiring the child wean immediately or the mother pump milk, allowing the father to spend extended periods of time with the child.

State and federal legislation

A decision by the Fifth Circuit Court of Appeals in 1981 stated that a "mother's desire to breast-feed her child [is] entitled to constitutional protection. The Constitution protects from excessive ... interference a woman's decision respecting breast-feeding." (Dike v. Orange County School Board, 650 F.2d 783 (5th Cir. 1981).) If that's so, why is there a need for breast-feeding legislation?

"The courts are not upholding women's right to breast-feed," Baldwin said. "The states need to enforce that right with legislation because the court system leaves moms with no recourse. The purpose of legislation is not to legalize breast-feeding but to clarify that women have the right to breast-feed in public."

Much of the legislation revamps vaguely worded criminal statutes to ensure that mothers who nurse in public are protected from charges of indecent exposure and lewd behavior. The legislation also aims to change society's perception that breast-feeding in public is obscene or indecent.

"Society is strange when it comes to breasts," said Paula Pearlman, an attorney with the California Women's Law Center and cocounsel in Madden-Lunsford's case against Borders Group. "It finds nothing wrong with magazines that feature scantily clad women lining supermarket checkouts, but when women use their breasts as nature intended--to nurse--there's an uproar."

According to La Leche League, at least 20 states already have laws in place to protect a woman's right to breast-feed. New York enacted the strongest law, which declares breast-feeding a woman's civil right. Minnesota is the only state that requires employers to provide an area designated for pumping milk and to allow mothers to take sufficient time from work to pump.

Two states--Iowa and Idaho--have legislation that excuses breast-feeding mothers from jury duty. Iowa exempts mothers if they are breast-feeding, responsible for the daily care of their children, and not regularly employed outside the home. Idaho excuses all breast-feeding mothers.

Florida, meanwhile, exempts from jury duty stay-at-home parents--moms and dads--who have children under six.

No state has legislation in place to guide courts in divorce cases.

On the federal level, Rep. Carolyn Maloney (D-N.Y.) has submitted to Congress four bills that support breast-feeding. If passed, the bills would:

* provide a tax credit for employers who set up a private, sanitary location for women to pump milk for their babies; purchase or rent lactation-related equipment; hire a health consultant for nursing mothers; or otherwise promote a lactation-friendly environment;

* clarify the Pregnancy Discrimination Act--which prohibits workplace discrimination on the basis of pregnancy, childbirth, or related medical conditions--to ensure that breast-feeding is protected under civil rights law;

* require the FDA to develop minimum quality standards for breast pumps to remove from the market those that are painful, ineffective, or cause injury; and

* ensure a woman's right to breast-feed her child anywhere on federal property where she and the child have a right to be.

Legislation or not, some companies have struck off on their own and included mother- friendly programs in their benefits packages. For example, Aetna, Inc., includes breast-feeding support in its wellness program. The company has private rooms equipped with breast pumps so moms can pump milk discreetly and comfortably after they return from maternity leave. Other companies that promote breast-feeding in the workplace are Dow Chemical Co., General Motors Corp., and Ford Motor Co.

According to the Society for Human Resource Management in Alexandria, Virginia, the number of employers that offer lactation programs is on the rise. And companies with these programs experience 27 percent fewer maternal days off and 36 percent fewer infant illnesses.

As more employers, courts, and state legislatures recognize the importance of breast-feeding, and as trial lawyers join forces with mothers to enforce the right to nurse, more of those involved--babies and their parents, employers and society--will reap the rewards of breast-feeding.