Argentina: Breastfeeding criminalisation case dismissed on appeal following intervention from ICW-Argentina

Charges dropped/acquittal

August 18, 2022
Source: ICW

A pregnant woman went for medical check-up to a clinic in San Luis Province. The clinic told her that she should not breastfeed and, in communication with a public children’s hospital, the clinic filed a complaint at a family court. The family judge issued an injunction (medida cautelar) stating that if the mother did not follow the clinic’s instructions (not to breastfeed) both parents would be subject to criminal prosecution.

ICW Argentina provided technical support for the defence of the case, aimed at dismissing the injunction that threatened criminal prosecution if breastfeeding occurred. The ban was lifted but the appeal ruling still acknowledged the minimal risk of transmission and states that breastfeeding is “not recommended”.

Defence arguments:

  • The precautionary measure was intimidatory; it had no legal basis or reference to a specific offence, only a generic allusion to “criminal actions”.
  • There is no express prohibition on breastfeeding in any Argentine law, so the ban was unlawful.
  • The new HIV law does have a chapter on pregnancy and does not prohibit breastfeeding.
  • The judge interpreted an article of the new law referring to the State’s obligation to provide formula as meaning that formula would be the only authorised source of nourishment, when the obligation is for the State as an alternative and not for parents.

The woman managed to breastfeed. However, the justice checks stopped only when she stopped breastfeeding her kid, at one year old.

There was no transmission of viral load and the mother maintained an undetectable viral load throughout the pregnancy and breastfeeding, which was monitored by a team of doctors.

It is crucial to raise awareness and train defenders and judges.

Editorial comment

ICW Argentina have since published a report on the case aiming to raise awareness of the impact of criminalisation for the potential transmission of HIV as a practice that alters, threatens and undermines constitutional rights and guarantees, which in turn generates stigma and discrimination against people living with HIV. It also seeks to set out the legal framework for exclusive breastfeeding. Additionally, there is an accompanying animated video reflecting on the story that can be used as an educational and awareness-raising resource in classes, webinars and workshops.

Click here for the original Spanish version of the report.