Bengaluru: The Karnataka High Court on Wednesday while hearing a dispute between the biological mother and a foster mother over the custody of their child, said that lactating mothers have an absolute right to breastfeed their babies and that they are guaranteed protection under Article 21 of the Indian Constitution.
"In the light of domestic law and the international law, breastfeeding needs to be recognized as an inalienable right of the lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother's right; arguably, it is a case of concurrent rights; this important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India," a single-judge bench of Justice Krishna S Dixit in his order said.
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The bench further ordered the foster mother to return the child to its biological mother saying that it is unfortunate that this child has been separated from his mother without breastfeeding. Such incidents should not occur in civil society, the bench ruled.
"Between the genetic mother and the foster mother, the claim of the former should have priority over the latter, subject to all just exceptions, into which the case of the foster mother is not shown to fall; this augurs well with reason, with law and with justice," the court said.
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However, prosecutors during the trial said, "the real mother already had two children. The foster mother does not have a single child also. In addition, the foster mother has cared for the baby for so long. Thus, the child must be given to the foster mother."
But the bench rejected the appeal made by the prosecutors saying, "However a broad norm is that in the matters of child custody, the claim of the strangers should yield to that of the genetic parents."
