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New Mexico Prisoner Obtains Court Order to Allow Breastfeeding

In June 2017, a New Mexico state court issued a temporary restraining order that required the Department of Corrections (DOC) to allow a prisoner to breastfeed her baby during regular visitation hours, and to pump breast milk so her child could be fed at other times.

Monique Hidalgo, 33, was pregnant when she violated the terms of her parole in a drug case. Hidalgo, who was addicted to opioids, arrived at the Western New Mexico Correctional Facility the following month to begin serving a three-year sentence.

Her daughter, Isabella, was born at the University of New Mexico Hospital on May 22, 2017, suffering from Neonatal Abstinence Syndrome (NAS), a common and treatable condition for newborns exposed to opioids in utero.

“Most of the babies go through the same thing,” said Dr. Lawrence Leeman, who treated both Hidalgo and her daughter. “They are a little shaky, their muscles are tighter, and often they will have trouble feeding.”

Despite requests from the DOC, Dr. Leeman managed to delay discharging Hidalgo for two weeks. During her pregnancy, Hidalgo had obtained permission from the DOC to receive methadone treatment, which stopped when she gave birth. Leeman wanted to provide time for her body to adjust to withdrawal from the medication. The DOC does not usually allow prisoners to receive drugs to assist during withdrawal, such as methadone or buprenorphine. Dr. Leeman also wanted Isabella to be breastfed, since breast milk and skin-on-skin contact have been shown to aid newborns with NAS.

Hidalgo and her daughter both responded well to the treatment plan, Leeman said, even though Hidalgo’s wrists and ankles remained shackled – resulting in a fall while holding her baby that put Isabella in an intensive care unit for a day. Hidalgo breastfed until she was returned to prison on June 8, 2017. DOC officials then told her she would not be permitted to breastfeed her daughter during regular visits with her fiancé, Isabella’s father. She also was not allowed to express breast milk so her baby could be fed outside visitation times.

With the help of attorney Amber Fayerberg, Hidalgo filed a lawsuit against the DOC and state officials. The complaint included a motion for a temporary restraining order and permanent injunction. On June 16, 2017, after determining ex parte that Hidalgo had no other available remedy and would suffer irreparable harm if the order were not issued, the court granted the temporary restraining order.

The DOC tried to frame its breastfeeding ban as a necessary precaution for the health of a baby born to a mother with Suboxone in her system. Suboxone is the brand name under which buprenorphine is sold. DOC officials also testified that guards performing a strip search found a fresh tattoo on Hidalgo – which may have infected her with hepatitis C.

“Our primary concern has always been and continues to be the safety and the well-being of the infant, which may now be compromised by this ruling,” said DOC spokesman S.U. Mahesh.

But in issuing the temporary restraining order, the state court said the DOC could not deny Hidalgo the chance to breastfeed her baby based on an unconfirmed drug test – her positive test for Suboxone was not verified by a lab – nor due to concerns over hepatitis C, which “is not a contraindication to breast feeding,” Fayerberg noted.

The DOC and officials at the Northwest New Mexico Correctional Facility were enjoined from prohibiting Hidalgo from breastfeeding Isabella during regular visitation hours. The court also held they could not prohibit her use of a breast-milk pump to express milk for her daughter.

In July 2017, state District Judge David Thomson found in favor of Hidalgo on the merits of her claims, ruling that women have a right to breastfeed their infants under the New Mexico constitution. See: Hidalgo v. New Mexico Department of Corrections, 1st J.D. Ct. of Santa Fe County (NM), Case No. D-101-CV-2017-01658.

On August 3, 2017, however, Hidalgo tested positive for buprenorphine, which was a direct violation of the terms of the court order. She was no longer allowed to breastfeed or express breast milk for Isabella, and was required to petition the court again before she could resume breastfeeding.

Fayerberg blamed the DOC for taking her client off methadone treatment too soon.

“It is extremely common for women to relapse postpartum if pregnancy methadone treatment is cut off, as it was in this case,” she said. “If the [DOC]’s lactation program is to be successful, it must permit mothers to continue to take those medications prescribed during pregnancy.”

According to Carolyn Sufrin, an OB-GYN and assistant professor at the John Hopkins School of Medicine, not all prisons and jails keep track of how many pregnant prisoners they house, nor how many give birth while in custody. 

Sources: Associated Press, Huffington Post,


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Related legal case

Hidalgo v. New Mexico Department of Corrections