Yesterday a judge from the Federal Circuit Court of Australia banned a mother from breastfeeding her 11-month-old baby because of tattoos that she had done four weeks earlier.
Even though the woman tested negative for hepatitis and HIV, Judge Matthew Myers cited an Australian Breastfeeding Association (ABA) report stating that "unacceptable risk" remained. But as VICE News noted, the same report added that the "risk of infection from getting a tattoo is low, especially if done at a reputable parlor."
However, the Sydney Morning Herald reported that the mother did not inform the tattoo parlor that she was breastfeeding, with its owner telling the court that "as a rule" he didn't tattoo pregnant or breastfeeding women.
It is not yet known if the ban will go through, given that the mother made an urgent application to the Family Court of Australia to have the ruling overturned. But for observers of the case, the judge's decision has set alarm bells ringing, considering it could set new parameters for how much risk people take in future. That's why we asked Margaret Thornton, a professor in law at the Australian National University, if Judge Myers's ruling would have an impact for the risk-takers of Australia.
VICE: Has there ever been a precedent in Australian law where a judge has ruled on a mother's risk taking?
Margaret Thornton: Well I haven't heard of anything comparable to this before. It's just come from left field, and… it focuses on the intimate relationship between a mother and a baby. To actually intervene at that stage is I think particularly unusual.
So based off what you've read thus far is this ruling too interventionist?
It certainly looks to be paternalistic, and whether there's further information provided by the judge, it's very odd. Normally a judge would be assiduous in making sure there's appropriate evidence to show that a particular action was dangerous for the child. But based off of media reports the mother's blood tests were all negative, so a decision based off of evidence was highly questionable.
One would probably have needed to be in court to understand the reasoning behind this decision though, because on the face of it, the case seems to be very flimsy.
So what's the general effect of having an interventionist ruling on the wider community?
Well it means that the freedom of choice that an adult can exercise it limited. We may not all agree on tattoos, but nevertheless subcultures in society find it is quite acceptable. We have to appreciate that as a liberal society—we think.
Is Australia generally interventionist when it comes to risk aversion?
Not particularly, which is why I think there's interest in this case. It's so bizarre that there's been an intervention of this kind. It could be argued that a mother has a right to breastfeeding, but on the other hand, people could say that the baby has a right to being risk-prepared. But all of us every single day take risks, which we take on board as the hazards of normal life.
When making decisions that obviously will affect a wider group of people, are judges fully aware of the impact they will have?
Oh of course. This could set up a precedent that could be relied upon by others and could be used again in custody and matrimonial disputes. There are always attempts by one partner to denigrate the other's ability to look after your child if the dispute is over custody.
So do you think we're more or less able to decide what risks we take?
Yes. We don't want the state or judges running our lives. We want to be treated as autonomous individuals who can make decisions on what seems to be best for our children and ourselves.
At the moment, the decision has been appealed to the Family Court of Australia, how do you rate the chances of this precedent actually being set?
Well from the evidence that we have publicly, that seems somewhat dubious. One would hope that common sense would prevail and hope that the full court would overrule the decision.
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