Breastfeeding Crime

Linda Folden Palmer, DC

Breastfeeding is now apparently a second-degree felony in Texas, or at least memorializing such an event in a family photo.

Two children were taken away from their parents after a photo of a 12-month-old baby with his lips on his mother's nipple was developed at a local drug store and then reported to authorities by the shop's clerk. No experts were consulted, no evaluations were made, the children were simply whisked away and the parents charged with the second-degree felony of "sexual performance of a minor."

According to the Dallas Observer, Johnny Fernandez, a hospital technician in Peru, had just immigrated to the US to be reunited with his girlfriend, Jacqueline Mercado, and their children. They took photos of their joyful reunion. The elation was enhanced by the celebration of their baby's first birthday. Since dad had missed the blissful breastfeeding days of recently weaned Rodrigo, mom decided to see if he would latch-on for a picture to commemorate and preserve this beautiful passage.

Peruvian born Mercado brought four rolls of film to a 1-hour photo lab in late October. Days later, her life, and those of her family, were turned upside-down. After responding to the photo clerk's alert, Richardson police reportedly considered the pictures to contain sexuality. A Child Protective Services supervisor, without any information beyond the photos, ordered the children to be removed from their home.

In addition to the one nursing photo that alone would lead to the couple's indictment by agrand jury, there were a couple photos of Fernandez and Mercado undressed and together, taken by automatic timer. Pertinent parts of their bodies were discreetly hidden. There were photos of the children playing in a park, some shots of the two children playfully together right after their bath, and a picture of mom in the tub with the 4-year-old boy, her breasts modestly covered by her arm --- or as detective Wakefield reportedly phrased it, "touching her breasts." Wakefield also expressed concern over a bathtub shot where the older boy's hand was near his own genitals.

The weekly paper reported that the police searched the one-room home for other evidence of pornography or questionable parenting as the children were taken away from their perplexed and pleading mother on November 13, 2002. Nothing was found. Subsequent psychological examinations of the parents revealed no signs of sexual deviancy. The psychologist reportedly described Fernandez as being under great strain from the recent traumatic events and attempted to use descriptions of this anxiety against him.

The family hired attorney Steven Lafuente. At first he assumed that there must be something more to the case than the photos described to him. He was very surprised to see the innocence of the pictures and to discover that there was no other evidence whatsoever. Still, a Grand Jury swiftly indicted the couple in January, basing their decision on the breastfeeding photo and no other incriminating evidence. By this time Mercado and Fernandez were penniless and working extra cleaning jobs to pay for their extensive legal fees and to pay child support to the state. Now they had to borrow $25,000 from family for bail.

The charges against the couple were dropped in late March after a reporter from the Dallas Observer asked a District Attorney to look into the case. The children remained in State Custody however. When reporter Thomas Korosec broke the story in the Observer on April 17, the paper received some 50 letters and the courthouse and attorneys were similarly flooded with mail. Members of a national attachment parenting organization flooded the offices with their own treasured breastfeeding and bath time photos. Only days after the story hit the stands, the children were returned to their mother.

The two young children were gone from their home for a total of 5 months. When asked how the children fared the separation, attorney Lafuente described that the first days in foster care brought lots of crying, misunderstanding, and expressions of missing mom. Even after a compromise was reached in December to place the children in temporary custody of the biological father of the older boy, the nights remained very traumatic. Supervised daytime visitations by Mercado and her boyfriend did become more lenient in this new placement.

Lafuente described the distraught Spanish-speaking parents as never entirely understanding what they had done wrong, why they were being threatened with prison, and why their family was torn apart. They explained to him how they had worked so hard and long to move their family to this "land of the free" and that they loved their children so very much. They expressed that they would never do anything to harm their children and did not intend to break the laws of their new country.

Reporter Korosec quoted the family's Pastor as saying that recording a breastfeeding moment in Peru is as common as it is to record a child's first steps in the US. The church's congregation stood behind the family whole-heartedly.

When consulted for her opinion on the story, therapist Debra Asper expressed shock over the actions taken on behalf of a family recording a beautiful, blissful passage of childhood. She emphasized, however, that one must look strictly to the law. Texas Code describes sexual performance by a child as including "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person."

While the true problem seems to be a cultural discord between the powerful bible belt of Texas and the natural innocence of Peruvian-born parents, the legal question according to code should be one of intent. Historically, nursing a child is intended to nourish, cherish, and foster, being considered more of an after-effect of sexual intercourse than a prelude. It seems apparent to most outsiders that any reasonable investigation into the family could have easily cleared-up any question of intent.

While the family tries to heal, the real crime is going entirely ignored. It is a sad statement of our new civilization when a photo store clerk, two police detectives, a CPS supervisor, and an entire grand jury have all forgotten how babies are fed, and are unable to appreciate the treasury of capturing the tender fleeting moments of childhood on film.