ABSTRACT
Breastmilk is a highly valued commodity. It is produced, stored, transferred, sold, and, at times, contaminated, stolen, improperly handled, and even lost. Litigants have largely sought remedies related to breastmilk under employment, family, and health law frameworks, consistently failing to bring claims directly related to the loss of property-the milk itself. These frameworks consistently deny plaintiffs access to well-established property based remedies when their breastmilk is lost, destroyed, damaged, and withheld. Breastmilk is a form of time-limited reproductive property. Its intentional production, fully vested value at the time of separation from a woman’s body, and value derived from its transfer (instead of its presence in the producer’s body) all indicate that breastmilk has more property-like qualities than many body products already recognized as property. As such, interference with produced breastmilk and, by extension, lactational capacity, can and should be treated as property and property-tort violations. This Article exposes a persistent remedy gap regarding breastmilk violations. Through a comprehensive review of over 1,300 cases, including frequent instances of breastmilk theft, intentional destruction, and custodial negligence by TSA, ICE, hospitals, employers, and ex-spouses, property claims are almost never raised in court. This, I posit, is a result of a combination of three factors in the legal space: 1) a persistent failure to treat some body materials as property, 2) a fear that, if all body materials were treated as property, such treatment would result in the negative commodification and exploitation of bodies, and 3) a systemic tendency within the plaintiff’s bar and society to undervalue breastmilk as a biological asset. Failure and fear have brought American society to a concerning reality: the law as written and as applied undervalues and under-protects women’s rights to their breastmilk. When women can legally sell their breastmilk, but regularly fail to claim monetary damages in court when others destroy their milk, the society has created a system where the law fails to recognize a harm that requires a remedy.
This Article introduces a novel four-part property taxonomy for breastmilk in order to assist lawyers and courts to develop mechanisms for recognizing wrongs under existing property doctrine, and to seek remedies under these doctrines – especially when other claims fail to provide remedies. The taxonomy divides into 1) expressed milk as possessory chattel, 2) stored milk as bailment property, 3) transferring breastmilk as relational property, and 4) lactational capacity as future productive property. Traditional doctrines of conversion, trespass to chattels, breach of bailment, and takings provide blueprints for securing accountability and monetary recovery for the unwanted destruction of ‘liquid gold’.
Goodman, Jordana, Property Rights in Liquid Gold: Recognizing Breastmilk as Property (July 15, 2026).
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