Judging with a gender and child perspective, benefits for risk during natural breastfeeding.

Regarding the Judgment of the Superior Court of Justice of the Canary Islands of December 17, 2019 (rec. 860/2019)

January 12 2020 (11:17 WET)

natural-lactation

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Convention on the Rights of the Child (art. 3.1)

1. The appealed sentence

The labor court dismissed the claim filed by the worker, regarding benefits for risk during breastfeeding, because the agents, procedures or working conditions that could negatively influence breastfeeding had not been clearly determined. According to the factual account:

The plaintiff provides services as a sociocultural animator at the «center for the care of the disabled». On December 5, 2017, she was recognized the right to benefit derived from risk during pregnancy. She is the mother of 2 children, one of them born on April 20, 2018, who is receiving breastfeeding.

Her job is affected, among others, by the following risks:

Contact with chemical products and biological agents, with the type of exposure being inhalational.

High level of social exposure, without sufficient help (support, breaks, etc.) that can lead to high tension/difficult control situations/stress that cause disturbances or significant discomfort (with aggressions or involuntary blows).

According to the risk prevention plan, there are agents, procedures and working conditions that may negatively influence the pregnant or breastfeeding worker.

It was not possible to adapt the plaintiff's job.

The plaintiff requested benefits for risk during breastfeeding, which was rejected by resolution of the mutual insurance company on August 24, 2018.

The operator received maternity benefits from April 20 to August 9, 2018 and has remained in a situation of temporary disability from August 31 to December 10, 2018.

2. Integration of the gender perspective and the child's perspective. «Best interests of the child» as a prevailing criterion

The most novel aspect of the analyzed sentence lies in the integration, together with the gender perspective, of a second hermeneutic of legal analysis: the «child's perspective» in application of the international mandates derived from the Convention on the Rights of the Child. The resolution walks legally to reach the ruling without losing sight of this double perspective.

Firstly, it starts from the gender impact of the legal debate1, which motivates the court to take extreme precautions in its approach, integrating the gender perspective as a methodology for equitable justice, in compliance with the «due diligence»2. But, in addition, there is another impact on the breastfeeding child, who may be deprived of their right to natural feeding in healthy conditions, in an essential phase in their short life, in which they need not only an adequate supply of nutrients to their needs, but also the emotional contact derived from the affective bond that is established between the mother and her baby through breastfeeding. Therefore, in this resolution, the international principle of the «best interests of the child» is applied as a hermeneutic legal criterion derived from article 3.1 of the International Convention on the Rights of the Child, binding on the signatory States.3

Reference is also made to General Comment No. 16 (2013) on State obligations regarding the impact of the business sector on the rights of the child4; to General Comment No. 14 (2013) on the right of the child to have their best interests taken as a primary consideration5 and to article 24.2 of the Charter of Fundamental Rights of the European Union6.

The application of both perspectives to the case at hand leads the court to uphold the appeal. The 3 legal pillars of the sentence are the following:

1st. Burden of proof

Firstly, it starts from the existence of risks for natural breastfeeding because it is recognized in the risk prevention plan. Once the above has been verified, with respect to the burden of proof in matters of risks that may negatively affect natural breastfeeding, the Judgment of the Court of Justice of the European Union of October 19, 2017 (case C-531/15, Otero Ramos) is recalled.7 The risk assessment of the plaintiff's job was carried out in 2014 in an abstract and non-individualized manner.

2nd. Biological state of the breastfeeding working mother

The meager medical report provided by the mutual insurance company on which its denial rests8, is described by the court as abstract and did not take into account the current biological state of the worker, since breastfeeding entails important hormonal changes in women's bodies, such as the release of oxytocin that is inhibited by stress, pain or any situation that activates the nervous system (psychosocial risks), with the consequent release of adrenaline and noradrenaline, an aspect that must therefore be taken into account in the life of a breastfeeding woman, as well as the greater metabolic wear and tear of mothers during breastfeeding.

3rd. Impact on the breastfeeding child

And it insists on the harmful impact that the unjustified denial of benefits has on the breastfeeding baby, which requires giving prevalence to the «best interests of the child» to guarantee the holistic physical, psychological, moral and spiritual integrity of the child, under the obligation to adopt all necessary, express and concrete measures to fully enforce this right.

3. Conclusions

The analyzed sentence is relevant because it integrates the child's perspective, derived from the International Convention on the Rights of the Child, as a legal hermeneutic of mandatory compliance for public authorities, bound by the principle of due diligence. The international principle of the «best interests of the child» is projected and specified in the benefit for risk during breastfeeding, as a primary consideration especially relevant when weighing conflicting rights, in order to guarantee the holistic physical, psychological, moral and spiritual integrity of the breastfeeding child.

And to the previous hermeneutic is added the gender perspective that is also deployed and applied to the case, focusing on the biological state of the working mother, since breastfeeding entails important hormonal changes in women's bodies, which were not taken into account by the mutual insurance company, omitting its obligation to assess the risks in an updated, specific and personalized manner.

This sentence opens a new interpretative path in accordance with human rights and the international obligations assumed by Spain, in those cases, such as benefits for risk during breastfeeding, where the protected legal right transcends the health of the working mother also affecting that of the child, through breastfeeding, which is not only a process of providing nutrients but also a catalyst for a powerful affective bond between the mother and her baby, which constitutes a unique, singular and necessary experience for the physical and psychosocial development of the child.

1 Benefits for risk during natural breastfeeding can only be received by women, for biological reasons.

2 This same court has been applying this criterion in numerous sentences, among others: recs. 1027/2016; 1237/2016; 1596/2018; 19/2019 and 369/2019.

3 That establishes:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

4 The rights of the child are universal, indivisible and interdependent and are related to each other [?] The obligation to take the best interests of the child as a primary consideration is especially important when States are weighing conflicting priorities (para. 12).

5 The full application of the concept of the best interests of the child requires adopting a rights-based approach, in which all stakeholders collaborate, in order to guarantee the holistic physical, psychological, moral and spiritual integrity of the child and promote their human dignity [?] (para. 5).
All States parties shall respect and ensure the right of the child to have their best interests assessed and taken as a primary consideration, and have the obligation to adopt all necessary, express and concrete measures to fully enforce this right (para. 13).

6 «In all actions relating to children, whether undertaken by public authorities or private institutions, the best interests of the child shall be a primary consideration».

7 This sentence resolves a preliminary question raised by the Superior Court of Justice of Galicia, in which the application of the rules relating to the burden of proof provided for in article 19 of Directive 2006/54/EC to demonstrate the existence of risk during breastfeeding, within the meaning of article 26.3 of Law 31/1995, which transposed article 5.3 of Directive 92/85/EEC into domestic law, was questioned. The European resolution declares article 19 applicable.

8 Literally it says: «having assessed the technical data sheets of the products it handles (sent by the prevention service) none of them poses a risk to breastfeeding, therefore the benefit is denied».

Published on the web CEF-Laboral Social

Most read