In Texas, A Picture of a Woman Breastfeeding Is Likened to Child Pornography

Peruvian immigrants Jacqueline Mercado and Johnny Fernandez turned in several rolls of film for processing at a one-hour drug store photo lab in November 2002. A single picture on that roll depicting Mercado nursing her one-year old child would have a grand jury indicting the two on child pornography charges.

Mercado’s son, Rodrigo, had already stopped breastfeeding, but according to a Dallas Observer story on the controversy, the couple wanted “to memorialize that stage of their baby’s development.” As Mercado told the Observer through a translator, “Johnny never saw the child breast-feeding, so this was for memories. For us.”

Police, who received the photographs from an employee at the photo lab who found them suspicious, had another interpretation of the photograph — that is was child pornography. The local District Attorney’s office presented the photographs to a grand jury who indicted the couple for felony “sexual performance of a child.” Police searched their home for other child pornography, and Mercado’s two children were taken away from her and placed in foster homes.

The District Attorney agreed that the photographs did not rise to the level of criminal activity and dropped the charges (conveniently, on the same day that the Dallas Observer published a long feature article on the case). But Child Protective Services refused to allow the children to return to their mother despite the dropping of the charges. At one point CPS demanded that Mercado and Fernandez take lie detector tests at their own expense before getting the boys back. CPS also chose very odd interpretations of some of the other photographs. For example, there are several photographs of Mercado in which she is topless with her arms modestly crossed across her chest, which CPS described thusly, “Mercado is in the photograph topless and touching her breast.”

The children were both released from state custody in late April (though the 4-year-old remained in the custody of his biological father).


State walks away from breast-feeding case. Patrick Williams, The Dallas Observer, April 24, 2003.

1-Hour Arrest. Thomas Korosec, The Dallas Observer, April 17, 2003.

Better not try breast-feeding in Texas. Vin Suprynowicz, Las-Vegas Review-Journal, April 27, 2003.

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