Judge: Inmate can breast-feed if she follows prison rules

A woman may continue breast-feeding her infant daughter while imprisoned, provided she passes drug screenings, a Santa Fe judge ruled Thursday in response to the state Corrections Department's attempts to expel her from its lactation program.

Monique Hidalgo, 33, won an injunction against the Corrections Department in June after it barred her from breast-feeding or pumping milk for her baby.

State District Judge David Thomson reaffirmed his opinion, issued last month, that said Hidalgo has a constitutional right to breast-feed her baby, 9-week-old Isabella, and that the prison system cannot prevent her from doing so during weekly visits, or from pumping breast milk.

But this right, Thomson said, is subject to continual verification that Hidalgo is free of drugs.

Thomson said the Corrections Department has the authority to discipline Hidalgo, as it would any other inmate, should she violate prison policy. This could include loss of visitation privileges. But, he said, disciplinary action does not merit permanent suspension of her right to breast-feed.

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"Ms. Hidalgo and her child may only be denied live breast-feeding for the duration of the time she is denied visitation privileges," Thomson wrote in his decision.

Attorneys for Hidalgo said they were pleased with the judge's ruling.

The Corrections Department said it could compromise the child's safety.

S.U. Mahesh, a spokesman for the department, said prison administrators were surprised and concerned by Thomson's ruling.

"We do not agree that an inmate who has tested positive for use of drugs should be allowed to breast-feed her infant daughter," he said.

But Hidalgo's attorneys said the state's claim that her breast milk might not be safe was invalid. Doctors previously testified that suboxone, a drug used in opioid withdrawal treatment, and which was found, unconfirmed, in Hidalgo's system, was safe for the baby when ingested through breast milk.

More:Breastfeeding is healthy for mothers, babies

The Corrections Department argued at an emergency hearing this week that Hidalgo had regularly violated rules at the Western New Mexico Correctional Facility in Grants, making it difficult for the department to verify her breast milk was safe for her baby.

Deborah Wells, an attorney for the Corrections Department, said prison employees discovered a new tattoo on Hidalgo's body during a strip search. Getting the tattoo violated prison policy because it could increase Hidalgo's risk of contracting hepatitis C, the state said.

Mahesh said the new tattoo heightened worry about the baby's health.

"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," he said.

Amber Fayerberg, one of Hidalgo's attorneys, said the state's arguments were baseless.

"There was no evidence that Monique has contracted hep C," she said.

More important, the virus "is not a contraindication to breast-feeding. Rather, the CDC writes that it is safe and recommended to breast-feed, even with hep C."

More:Breastfeeding: Not a single country in the world meets WHO, UNICEF standards

Mahesh said the first drug test, regardless of lack of verification, should have been sufficient to remove Hidalgo from the lactation program.

But Hidalgo's attorneys argued, and Thomson agreed, that without verification, there was no proof of wrongdoing.

Thomson said the results from any of Hildalgo's future drug tests must be sent to a lab for confirmation and she must submit to random testing.

If she fails a drug test, the court mandate requiring the prison to allow her to breast-feed would be lifted.

She would have to repetition the court to resume breast-feeding her child.

Hidalgo's case and pregnancy were complicated by her opioid addiction. She sought treatment while pregnant and received methadone under the watch of the prison system. But after the birth, both she and the baby were treated for opioid withdrawal.

Hidalgo was incarcerated after violating probation related to drug charges and absconding from the state for almost two years.

The court has not yet heard arguments related to whether Hidalgo needs treatment for opioid addiction, said Nicholas Hart, another of her lawyers.

Contact Rebecca Moss at 505-986-3011 or rmoss@sfnewmexican.com.