Divided opinions: The arguments over breastfeeding in a courtroom

In the past month, two women have been asked to leave the County Court of Victoria for breastfeeding.

The first incident occurred in early March 2023 when Judge Mark Gamble requested that a woman leave the courtroom as her breastfeeding would be a “distraction for the jury at the very least”.

A week later, Judge Gamble asked another woman, in a different case, to leave the courtroom due to the unsettled nature of her baby.

Breastfeeding has been permitted in Australian Parliament since the laws were changed in 2016 to allow babies to be brought into the House of Representatives. However, the position in courtrooms remains unclear.

While pregnant and breastfeeding women are protected under anti-discrimination laws in areas of public life, the Victorian Equal Opportunity and Human Rights Commission’s website does not clarify whether the legislation applies to courtrooms. Similarly, breastfeeding is not mentioned in any of the Victorian courtroom rules.

Victorian Early Childhood Minister Ingrid Stitt called the situation “incredible disappointing” as caring for a child is a basic human right.

“It’s 2023, for goodness sake … [women] should never be feeling that they can’t actually feed their child which is a perfectly natural and basic thing,” said Stitt.

“We need to be able to make women feel that there’s nothing wrong with them caring for their child including feeding their child in public places,” she said.

“The important message for Victorian women is that we support you and your right to be able to care for your children, and if that means you have to breastfeed in a public building, then that is something that should not only be tolerated but frankly celebrated.”

“The important message for Victorian women is that we support you and your right to be able to care for your children, and if that means you have to breastfeed in a public building, then that is something that should not only be tolerated but frankly celebrated.”

It is expected that the Attorney-General for Victoria Jaclyn Symes will discuss the issue with courts over the coming weeks.

Senior manager of the Australian Breastfeeding Association Naomi Hull told the Today show that the incident was both upsetting and highlighted the need for further education.

“All around Australia there is still a bit of work to be done on ensuring that breastfeeding is seen as culturally normal and is welcome everywhere,” said Hull.

In response to arguments that the women should have gone outside the courtroom to breastfeed, Hull explained: “When a baby is being breastfeed, they’re actually going to be quiet… that’s why the law says that wherever a baby is, they have the right to be breastfed.”

Crina Rabinowitz, Lawyer and co-founder of LawyerMe in NSW, debated the issue on LinkedIn and called the situation “a tough one”.

“I’m very divided. One the one hand, any woman should be able to feed their baby in all circumstances in all public places because for a child it’s a basic need,” Rabinowitz told LSJ.

“But on the other hand, as a litigator, criminal charges are being brought against a person who might potentially go to jail, it’s a very serious matter that affects someone’s life,” she said.

“How appropriate is it for a woman to breastfeed a child in circumstances where a person’s liberty is at stake?”

Rabinowitz highlighted the role of a judge – to ensure the jury remains engaged and undistracted and to conduct a fair trial.

“As a judge you need to make sure everyone is listening, engaged and answering questions – to make sure that the person who is on trial gets justice,” she said.

“There might be an important detail that is said during the time that the baby was breastfeeding and maybe jurors missed it.”

Rabinowitz asserted that the judge’s gender played a massive role in the public outcry and widespread criticism that has unfolded.

“If it was a female judge, maybe it would have been better,” she said.

“But because it’s a male judge, he’s now being portrayed as a bad person.”