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Karnataka HC: Breastfeeding Is an Inherent Right of a Lactating Mother Protected by Article 21

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Early in this October the Karnataka High Court held that the infant has a right to be breastfed and this has also been incorporated with the mother’s right under Article 21 of the Constitution of India because breastfeeding is a crucial aspect of motherhood.

Facts of the case

The case features competing claims for custody of a toddler by a biological mother and a foster mother. There was a Habeas Corpus case filed by the biological mother in 2020, which ultimately resulted in the child being tracked down at the lap of the foster mother. 

The foster mother and her husband filed a companion case in 2021 in which they challenged the Police Notice in which they had been directed to produce the child before the Child Welfare Committee, and this notification owed its source to the instruction of the said Committee issued to the Police. At the request of the Bar, both writ petitions were heard simultaneously for disposition.

Arguments by the Petitioner

The learned advocate appearing for the biological mother per contra asserted that in matters of custody of children as between the parents, a genetic mother and a foster mother, the former should have priority over the latter. He also informed the Court of the agony which the child’s biological parents had undergone for a year. 

He also emphasised the hardships of a lactating mother who was separated from her breastfeeding newborn. As a result, the counsel pleaded that the custody of the child must be given to the petitioners. 

Arguments by the Respondent

The counsel for the foster mother avidly argued for the dismissal of the biological parents’ writ petition. The gist of his argument was that his client was completely innocent of the accusations made against her; she was only a victim of situations; she had been fostering the child all these months abundant with love, affection, and care. 

The biological mother already had two children, whereas the foster mother had none; a child who had been well fostered for a long time should not be separated from the foster mother because that will cause enormous violence to it; in matters of custody, the child’s best interests are extremely important; thus, the foster mother should retain custody of the infant.

Observations of the Court

The court noted that breastfeeding must be recognised as an inalienable right of the lactating mother under domestic and international law. Similarly, the right of the growing newborn to be nursed must be integrated with the mother’s right; arguably, it is a cause of concurrent rights; and it must be safeguarded.

The decision of the court

The court held that the custody of the child should be transferred to the biological mother and the petitioner also with equal grace stated that the foster mother may see the child whenever she wanted. Hence the case got closure. 

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