Commodifying a mother’s milk ! How practically legal can it be?

In recent years, the conversation around maternal and infant health has taken center stage in public discourse, as policymakers, healthcare professionals, and families recognize its critical importance. One topic that has yet to receive sufficient attention in India is the legal status and regulation of the sale of breast milk. While breast milk is universally acknowledged as the most complete form of nutrition for infants, the question of whether its sale should be legalized remains contentious. This article explores the potential benefits, challenges, and implications of legalizing the sale of breast milk in India.

1. The Current Landscape of Breast Milk Donation and Availability

Breast milk is primarily provided by mothers to their own babies. However, in many parts of the world today, there are also breast milk banks—institutions that collect, screen, and distribute donated breast milk to infants who need it, particularly premature and low-birth-weight babies. These banks operate on a voluntary, non-commercial basis, and the concept of selling breast milk remains largely taboo and legally ambiguous.

Recently around 14 number of human milk banks (HMB) has grown all over India. However, this growth of human milk banks has been very slow while comparing to the growth of neonatal intensive care units. Reasons can be the loss of interest in human milk banking due to the promotion of formula milk by the industry.

2. The Benefits of Legalizing the Sale of Breast Milk

Addressing Infant Nutrition Deficits

India has a significant number of preterm births and malnourished infants, and not all mothers are able to produce an adequate supply of milk due to medical conditions, stress, or other factors. Legalizing the sale of breast milk could bridge this nutritional gap by providing an alternative source of nourishment to ensure infants receive the health benefits associated with breast milk, such as immune system support and reduced risk of diseases.

Economic Empowerment for Women

Legalizing the sale of breast milk could provide an income stream for mothers, particularly those from economically disadvantaged backgrounds. This could transform breast milk from an undervalued resource to a valuable asset that can support families financially.

Promoting Maternal Health Awareness

Regulating breast milk sale could also lead to heightened public awareness and support for breastfeeding initiatives, maternal nutrition, and overall postnatal care. With proper oversight, education campaigns could promote safe and ethical practices, benefiting both donors and recipients.

3. Challenges and Ethical Considerations

Exploitation and Inequality

One of the primary concerns with legalizing breast milk sales is the risk of exploitation. There is potential for economically vulnerable women to be coerced into selling their milk to meet financial needs, potentially compromising their own child's nutrition. Any legalization framework must have safeguards to prevent exploitation and ensure that the welfare of the mother and child is prioritized.

Health and Safety Concerns

Without proper regulation, the sale of breast milk could lead to significant health risks. Breast milk can carry diseases, including HIV and hepatitis, if not screened adequately. Any framework that legalizes the sale must incorporate stringent safety protocols, such as screening and pasteurization standards similar to those used by breast milk banks.

Ethical Dilemmas

The commercialization of something as intimate and biologically tied to maternal identity as breast milk raises ethical questions. Public perception and cultural beliefs play a significant role in shaping attitudes towards such a practice.

Lessons from Other Countries

The sale of breast milk has been legalized or operates informally in some Western countries, such as the United States, where online marketplaces for buying and selling breast milk exist. These platforms have highlighted both the potential benefits and risks, from mothers earning supplemental income to reports of fraud and safety concerns. India could take lessons from these countries, implementing a robust regulatory framework that ensures both accessibility and safety while mitigating the negative aspects of commercialization.

Policy Recommendations

For India to navigate the complexities of legalizing breast milk sales, a carefully crafted policy framework is essential. Recommendations include:

• Comprehensive Regulation: Establishing a government-regulated system with clear guidelines for screening, handling, and distribution of breast milk.
• Pricing and Equity Controls: Implementing price controls to prevent exploitative practices and ensuring affordability for low-income families.
• Support for Lactating Mothers: Providing financial incentives and healthcare support for mothers who donate or sell breast milk to prevent adverse effects on their own health or that of their children.
• Educational Campaigns: Raising awareness about the benefits and risks associated with breast milk sales, promoting informed decision-making among mothers.

Global Precedents

For a more comprehensive understanding, looking at case laws and precedents in other jurisdictions where the sale of human body products has been debated or regulated may be helpful:

• Flynn v. Holder (2012, United States): This U.S. case dealt with the sale of bone marrow, highlighting issues related to the commercialization of body parts. While not directly about breast milk, it can provide insights into ethical and regulatory challenges that may arise with similar bodily commodification.

Research Articles and Scholarly Sources

• "Commodifying Maternity: The Case of the Breast Milk Market" by Julie Smith, 2024 . This article examines the ethical implications of commodifying breast milk, providing a critical view of markets for breast milk and how it affects both mothers and infants.
• "The Ethics of Breast Milk Donation and Sale" in Bioethics journals: Discusses both the ethical considerations and public health implications of regulating breast milk.
• "Breast Milk Banking: Current Practices and Challenges in India" by Indian Journal of Pediatrics: Offers insight into the current state of breast milk banking, its regulation, and how an expansion into commercial sale might look.
• "Women's Bodies and Property Law" by Martha C. Nussbaum: Though broader in scope, Nussbaum’s work discusses the intersection of gender, property, and ethics, which could be applied to arguments for and against the commodification of breast milk.
• UNICEF and WHO Reports on Breastfeeding and Infant Nutrition: These reports highlight the importance of breastfeeding and could provide data to argue both for and against the commercialization of breast milk.

4. Legislative Context and Policy Papers

• The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply, and Distribution) Act, 1992: This Indian law regulates the marketing of infant milk substitutes and could provide insights into the legislative environment surrounding infant nutrition.
• Indian Medical Council Regulations: While these guidelines typically focus on healthcare practices, they touch on ethical issues related to patient care and bodily materials.

International Guidelines and Ethical Frameworks

• World Health Organization (WHO) Guidelines: WHO’s recommendations on breastfeeding and breast milk banking can inform discussions on how similar frameworks could be adapted for a regulated breast milk market.
• UNESCO's Universal Declaration on Bioethics and Human Rights (2005): This declaration, to which India is a signatory, addresses bioethical issues, including the equitable distribution of medical resources and the ethical implications of commodifying the human bo

Conclusion

The legalization of selling breast milk in India could address critical gaps in infant nutrition and offer economic opportunities for mothers. However, it must be approached with caution, empathy, and a strong regulatory framework that prioritizes the well-being of both donors and recipients. By learning from other countries and tailoring solutions to India’s unique socio-economic context, it is possible to create a system that benefits all stakeholders involved.

The sale of breast milk is more than just an economic or medical issue—it touches on the deeply personal and cultural values surrounding motherhood, health, and equity. As India moves forward, open dialogues and thoughtful policies will be essential in striking a balance between opportunity and ethical responsibility.

The debate over legalizing the sale of breast milk in India would benefit from insights drawn from related case laws on bioethics and commodification, international precedents, and scholarly research. While existing Indian case laws may not directly address the sale of breast milk, principles of human dignity, public health, and ethical treatment provide a foundation for regulatory discussions. Further empirical studies and public health research on the implications of such a move could pave the way for more informed policy decisions.