Breastfeeding etc (Scotland) Bill: Stage 2
I welcome Elaine Smith MSP, whose member's bill we are considering at stage 2, and Carolyn Leckie, who has lodged amendments to the bill. I also welcome the Deputy Minister for Health and Community Care, Rhona Brankin, to her second Health Committee meeting in her new guise.
Section 1—Offence of preventing or stopping a child from being fed milk
Amendment 1 is grouped with amendment 2.
Amendment 1 is my preferred one and I believe that it would be helpful. Elaine Smith and the committee have done a great job in getting the bill to this stage. I hope that their work has helped to put to rest some myths and prejudices and that we can now take the debate on the mother-baby dynamic a stage further.
I have lodged amendment 1 because I am a wee bit concerned that the bill's definition of a child as being a person under two years conveys a retrograde message that would allow someone to challenge a mother who was nursing an older child. Obviously, the mother would be protected from harassment or assault by existing legislation, but the bill will not preserve her right not to be challenged in or removed from a public place or licensed premises when she is breastfeeding.
The breastfeeding relationship between a mother and a baby is a dynamic one that is about them alone, and no person or legislation should interfere in that by giving the impression that an acceptable time limit for breastfeeding has been set. It has been shown that breast milk adapts physiologically to the age and needs of a breastfed child. The composition of breast milk changes as a child grows—including children older than two.
As I said during the stage 1 debate, I breastfed both my children, and I breastfed my oldest daughter until she was two years and two months. At that age, children are articulate and can participate in a discussion. In general, children do not breastfeed often at that age, but breastfeeding can be a comfort if they fall over, for example. A scenario can be imagined in which a child falls over in a dining area, hurts themselves and wants a breastfeed as a comfort. One day before a child's second birthday, that would be okay and nobody would be in a position to challenge what was happening—the mother and child would be protected by law. However, the day after the child's second birthday, they could be challenged—although obviously not harassed. There is a potential contradiction, which could inhibit the mother-baby dynamic.
Not many mothers breastfeed children at the age of two, although I hope that the number who do so will increase. The lower the age limit in the bill, the more impetus there will be to wean as that age approaches, so that the child is no longer breastfeeding by that age. However, who would define a child as being two or under?
Children come in varying sizes. By setting the age limit at two, it is possible that mothers who have larger children who look as though they might be two will be asked their child's age. I am a wee bit worried about that, which is why I want to remove the definition of "child", to leave it open ended and to leave the decision in the domain of the mother-baby dynamic. I want to leave the definition up to the mother and the baby; I do not want to leave it up to anybody else to cast an opinion or to be able to make a challenge.
I have spoken to Elaine Smith and I appreciate the arguments for setting an age limit. That is why I lodged amendment 2, which might be necessary to set the age at five and so take the matter beyond the realm of being an issue. Setting the age at two could be an issue; it would leave a grey area and the potential for mothers and children to be challenged. It would also send out a wee bit of a negative message about breastfeeding older children. There is still prejudice about that, which needs to be challenged, because it is there only because of the sexual objectification of women and women's breasts. Some people find the idea unpalatable, and that needs to be directly challenged.
I lodged amendment 1 so that there would be no definition and no interference. If amendment 1 is unacceptable, I will move amendment 2, which would take the age to five, taking it beyond the realm of possibility that anyone would be caught in the grey area that I mentioned.
I move amendment 1.
If amendment 1 is agreed to, amendment 2 will be pre-empted. The amendments are grouped together, so we are dealing with them together.
I have moved amendment 1 and I will move amendment 2, but I prefer amendment 1.
You cannot move amendment 2 yet.
I oppose amendments 1 and 2. In particular, I oppose amendment 1, because we must consider where we are with breastfeeding in Scotland. Scotland is a nation with one of the worst breastfeeding rates in Europe because of public attitudes towards breastfeeding, particularly among young mothers, who—unfortunately—too often still see it as not for them. I have supported the bill because of the important public message that it sends out in reassuring people that breastfeeding is a normal activity that should be encouraged. My concern about amendment 1 is that it could send out a message that runs counter to that message, as it could be subject to ridicule. Elaine Smith has steered a careful path in the bill to ensure that breastfeeding is presented in comfortable terms.
We need to take a big step to increase breastfeeding rates, and I do not think that that would be helped by the impression—albeit an unfair impression—that there is no upper age limit on breastfeeding in public. That would be seized upon by those who would want to seize upon it for whatever reason. Such a provision could be severely misrepresented and could deeply damage the major thrust of the bill, and that would be a retrograde step.
I oppose amendment 1 on those grounds and I look forward to hearing what Elaine Smith has to say about it.
It is important to put on the public record once again the fact that the bill will not introduce an upper age limit on breastfeeding. The bill is not about that; it does not give new rights to mothers and babies, because they already have those rights. Specifically, the bill creates a new criminal offence of deliberately preventing or stopping
"a person in charge of a child"
who is under two
"from feeding milk to that child in a public place".
That is what the bill is about, so it is nonsense to talk about allowing children to be fed their mother's milk at any age.
With the bill, we will create a criminal offence, which must be absolutely specific. Elaine Smith and those who have worked on the bill have done an awful lot of work on the issue. We will hear from Elaine Smith in a moment, but I think that it is better to go with what the proposer of the bill suggests rather than open a can of worms.
I do not support either of the amendments, but not because I am anti-breastfeeding—I am pro-breastfeeding and breastfed both my kids, about 25 years ago, when it was unfashionable to do so and not even many health professionals promoted it. It was difficult, and I have experienced not being allowed to breastfeed a small baby in public.
We must set an age limit and I think that two is a good age. Beyond that age, kids can understand the concept that they will get something later on and can eat and drink through means other than breastfeeding. I know that one of Elaine Smith's aims is to promote breastfeeding, but if we are talking simply about people being able to feed their babies in public, I do not think that it necessarily should be a criminal act to stop people breastfeeding a baby who is older than two, given that there are other methods of feeding such babies. As Mike Rumbles said, the bill will not introduce an upper age limit on breastfeeding. People should be allowed and encouraged to breastfeed their children for as long as that is suitable and beneficial for the child and the mother.
I am not comfortable with raising the limit in the bill to five and I understand that there would be legal problems if we had no limit. I am happy to support the bill—I supported it at stage 1—and I congratulate Elaine Smith on introducing it, but I am not prepared to support the amendments.
Like other women who have spoken, I breastfed both my daughters when they were little, in some quite difficult situations.
The Executive supports the bill. We are of the opinion that its primary aim is to improve children's health. The Executive is committed to giving every child in Scotland the best possible start in life and to a programme of supporting and promoting breastfeeding, which includes the development of a breastfeeding strategy in the coming year. That work is important and I look forward to doing it.
I have considered Carolyn Leckie's amendments, both of which we resist for similar reasons to those that members have given. There is a long way to go to encourage women to breastfeed. It is in no way a universally accepted part of our culture, and the rate of breastfeeding among women is still much lower than we would like. We do not yet have 50 per cent of women breastfeeding at six weeks, although it is in the first six weeks of a child's life that the benefits of breastfeeding are most pronounced. Therefore, we feel that we must focus our promotional efforts at the very start of a child's life; indeed, the World Health Organisation's position emphasises the importance of the first two years.
The difficult issues surrounding the bill have been mentioned. Given the current lack of understanding among the general population about breastfeeding and its benefits, increasing the age limit could have negative consequences both for the bill and for the whole image of breastfeeding. Keeping an age limit of two years in no way makes breastfeeding in public beyond that age illegal. The huge challenge for us is to increase the number of women who want to breastfeed their babies and to encourage women to breastfeed for around six months. We feel that, for the purpose of the bill, the age limit of two years is appropriate and helpful and will offer protection to the vast majority of women who wish to breastfeed for longer than six months.
I am pleased that Carolyn Leckie has lodged these amendments. The more that we debate the subject, the better that will be for raising awareness and making society consider and challenge the prejudices and misconceptions that it has about breastfeeding.
Research into the issue reveals that the norm around the world for weaning from breastfeeding is between two and four years. In some cultures, the child is older; for example, Indian custody law decrees that any child under six years must reside with their mother because they are considered to be of suckling age. Other primates feed their young for years rather than for months, and research that compares humans to primates suggests that humans' natural weaning age from the breast is a minimum of two and a half years and a maximum of between six and seven years. There is a lot of variation. We humans might consider ourselves to be smarter than primates, but perhaps we are not as smart about infant nutrition as we might like to think that we are.
I have no doubt that, if a big drug company was making a profit from breast milk, we would all be well aware of the nutritional benefits of feeding our children for as long as the mother and child both want. Some research shows that the benefits continue for as long as breastfeeding continues—Carolyn Leckie mentioned that. Personally, I believe that it should be entirely up to mums and babies, with no stigma attached to it. It is normal, nurturing, maternal behaviour and should be supported as such by society.
However, we do not live in a breastfeeding culture in Scotland. The reality is that even small babies who are utterly dependent on their mother's milk can be viewed askance when feeding in public and women and their babies can be segregated or ejected from public places and licensed premises; the committee will know that, having looked into the matter. The bill is intended to offer protection in the law and to promote breastfeeding, thus assisting a change in attitudes and empowering breastfeeding women and children. As the minister said, changing attitudes is a big issue.
I turn specifically to the two amendments and address amendment 1 first. When changing the law, the legislation must be clear, unambiguous and precise. Leaving the term "child" undefined would not be good law. Without a definition, "child" could mean anyone from one day old to 18 years old. Carolyn Leckie asked how it could be proved that a child was older or younger than two. That would have to happen if a case was being prosecuted and a procurator fiscal was involved. We have other age-related laws—someone has to be 14 to go into certain licensed premises, 16 to buy cigarettes and 18 to buy alcohol—so there are precedents. As the bill creates a criminal offence, the term "child" needs to be defined so that everybody knows exactly what the offence entails. Therefore, amendment 1 must be rejected on the basic principles of good Scots law.
Amendment 2 deals with a more substantive issue. The steering group discussed various ages. At one point, I suggested the age of five years old, but that was pretty arbitrary; we could have chosen any age. We had many meetings and the issue was batted back and forth. According to the research on weaning, seven years old might be a more appropriate cut-off point, given that that is what the research on primates says. The age of two years old was put in the bill, because that is the age that the WHO recommends, rather than the ages of one year old or three years old. There was a logic to the choice of two years of age. In addition, the commonsense point was made—which Kate Maclean has reiterated—that most children who are under the age of two, unlike older children, cannot understand the concept of waiting for a feed. Older children can communicate their feelings, wants and needs; they do not breastfeed exclusively or as frequently as children who are under two; and they can eat other things. Ultimately, the bill seeks to safeguard and protect the right of very young children to feed.
The steering group took the decision to mention a specific age for the purposes of the bill. It thought that, given that the issue is highly contentious, the committee might want to consider the matter at stage 2, depending on the evidence that it had taken and its deliberations at stage 1. At stage 1, the committee concluded that it was appropriate to define "child" for the purposes of the bill.
Carolyn Leckie mentioned some of the reasons for the decline in breastfeeding in Scotland. I will not go into those, as I have outlined them before, but I think that the factor that affects societal views on the feeding of toddlers, in particular, is the result of the sexualisation of women's breasts and prevailing cultural attitudes towards breastfeeding as a whole. If the bill is passed, the benefits that will accrue as regards changing attitudes and making breastfeeding more culturally acceptable will roll out to benefit children who are older than two.
As Mike Rumbles said, it should be noted that the status quo will prevail in relation to children who are older than two, so it will not be illegal to breastfeed children of that age. The Executive could perhaps turn its mind to promoting the benefits of breastfeeding for as long as mums and babies want to continue with it. That is a practical suggestion that the Executive could consider as part of its duty under the section on promotion.
Although some children are breastfed for more than two years, the majority are weaned off the breast far too early. That is evidenced by the fact that the Executive's target on breastfeeding for next year is that 50 per cent of mothers should still be breastfeeding their babies at six weeks. That target is far from being met because, at present, less than 40 per cent of mothers are still breastfeeding at that stage.
The realpolitik of the situation is that it represents quite a quantum leap in the United Kingdom for a legislature to enshrine in law protection and promotion of breastfeeding; Scotland would be the first country in the UK to do that. Attitudes towards small, dependent children must be changed. I hope that that will mean that a situation evolves in which all breastfeeding will be embraced as normal, nurturing maternal behaviour.
At stage 1, the committee gave much time and thought to the definition of "child", alongside all the other issues. It was right to conclude that an age should be included in the bill—the definition of "child" is appropriate for the purposes of the bill. If the committee decides to support amendment 2, I would be relaxed about that in that it is the committee's prerogative to do so. However, I would want to ask why it should opt for an age limit of five rather than one of six, which, as I mentioned, applies in Indian culture, or one of seven years old, to which the research on primates points. Indeed, why not opt for a limit of eight years old?
I believe that society should support women in breastfeeding their children for as long as they want to do so, but I must stand by the definition that the bill sets out, which was agreed on by the steering group after many meetings and much deliberation. There is a certain logic to it.
I thank the committee for its scrutiny of the bill and for its robust stage 1 report.
I found the discussion illuminating. I point out that the WHO global strategy for infant and young child feeding, which was adopted at the world health assembly in 2002, was careful not to set an upper limit on the duration of breast feeding.
Elaine Smith asked why not have an upper limit of six or seven years of age. That begs the question why have an upper limit of two years of age. My preference is that there should be no reference to an age limit, because breastfeeding is about the mother-baby dynamic. In lodging an amendment that defines "child" as a person who is under five years of age, I recognised the cultural reality in Britain, but sought to ensure that there would be no women who breastfeed their babies who might perceive themselves as being discriminated against by the bill.
I will deal with Mike Rumbles's point. It would not be a criminal offence to challenge a breastfeeding mother of a child who is two years old and older, so that is discrimination, because it would be a criminal offence to challenge a mother who is breastfeeding a child aged under two. Why should there be that differentiation? Why should a mother and her baby's relationship be protected when the baby is under the age of two but not when the baby is over the age of two? The onus should be on those who argue for that to explain why such an arbitrary age limit is necessary. If it is a crime to hit one person and not a crime to hit another, that is discrimination, and that is a potential problem with the bill.
On Kate Maclean's point, there is limited understanding of what the breastfeeding relationship with an older child becomes. It is quite naive to use the argument that because the children are older, they understand and can wait for food and drink. In my experience as a health professional and a mother, and as someone who initiated a breastfeeding support group through the National Childbirth Trust when my children were small, the breastfeeding relationship moves from being an exclusively nutritional relationship to being a nutritional and emotional relationship, and by the time a child is older, the relationship can be predominantly an emotional one. When a child is looking for comfort—a child who is not breastfeeding might be comforted by a dummy tit—it is not acceptable to say to the child, "You have hurt yourself. You are crying and upset, but you need to wait because we could be challenged in this place". I am sure that there are people who know that when that kind of breastfeeding relationship has been established with their child, there is only one thing that can shut them up and stop them crying until they are weaned, and that is to breastfeed them. For some children, the mother-baby relationship could be damaged if it is artificially interrupted.
It is unfortunate that we have to define what a child is. I understand the pressures, but it would be helpful to leave the definition loose and not to convey any impression. I have chosen the age of five because I recognise the cultural realities in Britain and that it is unlikely that any mothers and children would still be breastfeeding by the time the child is of school age, or would feel that they were being discriminated against.
It is open to members to lodge other amendments and to choose another age—three, four, six or seven—at stage 3 if that is the argument; but I do not believe that that is the argument. If people ask me why I have proposed the age of five, I will ask "Why two?" because there are definitely still babies of that age being breastfed in this country, and I am sticking up for them.
Are you pressing amendment 1?
I am pressing amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
Against
Cunningham, Roseanna (Perth) (SNP)
Davidson, David (North East Scotland) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Maclean, Kate (Dundee West) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
The result of the division is: For 0, Against 9, Abstentions 0.
Amendment 1 disagreed to.
Amendment 2 moved—[Carolyn Leckie].
The question is, that amendment 2 be agreed to. Are we agreed?
No.
There will be a division.
Against
Cunningham, Roseanna (Perth) (SNP)
Davidson, David (North East Scotland) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Maclean, Kate (Dundee West) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
The result of the division is: For 0, Against 9, Abstentions 0.
Amendment 2 disagreed to.
Sections 1 to 5 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank everyone for coming along.