Patty and Seth are planning for the birth of their first child. They do not want to be in a stark hospital when their baby is delivered. They would much rather have the baby delivered by a midwife at their home. As Patty and Seth begin their search for a midwife, they find that only specially trained nurses are allowed to be midwives in their state, and those nurses must be certified. Nurse-midwives must also be sponsored by a doctor in order to do home deliveries. The problem is that doctors’ insurance companies do not allow doctors to sponsor midwives. Patty learned from a friend of a midwife named Betty with 17 years experience, but Betty is not certified. Betty recently moved to Patty’s town from another state where midwives did not need to be certified. Betty is willing to deliver Patty and Seth’s baby in their home, but Patty is worried that it would be illegal. Patty and Seth feel as though they can’t choose to have their baby delivered as they wish.
Childbirth is one of the most intense experiences you will ever face. At such an important time you want more control and more choices, not fewer. Yet the state has a powerful interest in your safety and security and in protecting you from harm.
The state legislature’s difficult job is to pass laws that will protect your health while at the same respecting your individual rights to privacy and to choice in reproductive matters, such as having a baby. How childbirth should be handled is looked at from the standpoint of safety for you and the baby, the costs of childbirth options, your freedom of choice, and the quality of care available.
DRAWING LINES
Courts have ruled that our constitutional right to privacy protects our choice of whether to have a baby, what contraceptives to use, and whether a pregnancy can be terminated. However, a Colorado court ruled that a woman’s right to privacy does not include the personal choice of whether to have a midwife deliver her baby.
Childbirth today is viewed much differently than it was even 20 years ago. Childbirth classes are now the norm, giving more information and allowing more choices during delivery. A number of communities offer parents the option of giving birth in a hospital, at home, or at a birthing center. The majority of births still take place in the hospital, but that experience has changed as well. Today women may accept or reject medication for pain, as well as enemas or other procedures. The woman’s family and friends are allowed to remain with her throughout the labor and delivery. The new mother decides whether to keep the baby with her in her room or to have the baby cared for in the nursery.
These changes were not, in large part, brought about by changes in the law (except for midwifery, which is discussed in a moment). Rather, hospitals changed their policies as a result of societal changes, such as women becoming stronger advocates in their health care. Also, as health care has become more competitive, hospitals have had to become more attuned to the needs and wants of pregnant women and change their policies accordingly.
This does not mean that parents haven’t tried to use the legal system to change the status quo. Several couples who had taken Lamaze classes sued a hospital because the hospital prohibited fathers from being in the delivery room. The couples argued that they had a constitutional right to choose whether the fathers should be present at the birth. The court ruled that there is no constitutional right to choose birthing methods, and the couples lost their case.
The majority of doctors refuse to do home births because of the fear of malpractice lawsuits. Even a malpractice lawsuit that has no basis and is thrown out of court or won by the doctor is very costly and time-consuming. Nevertheless, some doctors are in favor of home births, believing them to be the better choice for expectant mothers at low risk of a difficult childbirth. One doctor in Chicago claims his group of physicians has delivered 14,000 babies in home births in the past 25 years.
In the United States, midwives were in charge of delivering babies until relatively recently. In Manhattan in 1916, only 19 percent of births took place in hospitals. In less populated areas, this percentage was even lower. For example, in Maryland, less than 3 percent of births outside Baltimore took place in hospitals in 1921. As training for medical doctors became more formalized, the practice of obstetrics gained prominence and a greater number of urban women began to seek doctors to oversee the birthing process. Midwives were still the predominant caretakers for pregnant women in rural areas, though, where fewer doctors were available. In 1930, the American Board of Obstetrics and Gynecology was established and obstetrics became a recognized specialty field of medical practice. Slowly, society began to view obstetricians as more educated and safer than midwives. Today, the vast majority of births occur in hospitals equipped with the technology and staff to handle any emergency that may arise in childbirth. Yet, midwifery still exists.
LEARNING THE LINGO
Midwifery: A body of knowledge regarding normal maternity care. This was originally the province of midwives and women, but it was slowly taken over by obstetricians, who were known as man-midwives.
Every state has a law regarding midwifery. These laws put restrictions on who may be a midwife, but they do not prohibit midwifery outright. Most of these laws do not regulate where and in what manner the birth takes place, only what type of medical professional is allowed to assist and attend to the expectant mother.
These laws do not ban parents from hiring midwives or from choosing to have the baby at home. Parents can choose to be attended by a midwife. The midwife, though, may not have hospital admitting privileges, so that might eliminate one option parents have for where their baby should be born.
MORE LINES DRAWN
Though we have certain constitutional protections regarding our reproductive rights, parents do not have a constitutionally protected interest in the manner and the circumstances surrounding the birth of their children.
Today certified nurse-midwives are able to practice legally in all 50 states. Certified nurse-midwives are trained through programs approved by the American College of Nurse-Midwives (ACNM). An estimated 4,000 nurse-midwives are presently certified throughout the country, with most of them working in conjunction with doctors.
The certification requirements, like certification and licensing requirements for nurses and doctors, are an attempt to assure that qualified individuals in a specialty are recognized. They are a way of protecting the public.
How midwives are to be certified differs from state to state. One state allows that nurses can be certified as midwives, but the department that is to do the certification stopped certifying midwives years ago. So even though the law allows certified midwives to attend expectant mothers, in reality a soon-to-be mother would have a difficult time locating a midwife to be present at a home birth in that state.
Allowing for certified nurse-midwives is essentially a compromise between obstetricians and lay midwives. Certified nurse-midwives are registered nurses trained in obstetrics. How closely they are regulated varies from state to state. Some hospitals ban certified nurse-midwives from attending births in the hospital, preferring that only the hospital’s doctors be present.
On the other hand, some states allow certified nurse-midwives to obtain hospital privileges, to prescribe medications to women, and to attend births in the home, hospital, or birth centers. They can provide family planning and women’s health care, as well as prenatal and birthing care.
Licensed or certified midwives (sometimes also called “direct-entry midwives”) are not required to be nurses, although nurses are not excluded from being licensed or certified. These midwives are trained through a combination of apprenticeships, correspondence courses, self-study, and formal schooling. These midwives must meet or exceed the state’s requirements for midwifery by documenting their experience and passing both skills and academic exams.
Direct-entry midwifery is legally recognized in some way in more than half the states. A handful of these states allow Medicaid reimbursement for licensed midwives, as do many insurance companies. Licensed midwives sign birth certificates and are generally required to have doctor backup and emergency procedures lined up in case something goes wrong during delivery.
TALKING TO A LAWYER
When a Midwife Lies about Being Licensed
Q. Our child was born at home with the assistance of a midwife. Our state requires that midwives be licensed. The midwife told us she was licensed, but after the birth we found out that she was not licensed. Do we have some legal recourse against the midwife for lying to us?
A. There are many potential avenues for redressing the intentional fabrication by the midwife about her licensure status. At the outset, a complaint could be lodged with the respective state professional licensing body. The midwife was practicing a licensed profession without the benefit of the applicable state license. Many states classify such an offense as a crime, and, thus, this could result in criminal liability for the midwife.
Additionally, the intentional misrepresentation of her credentials depending on the circumstances may rise to the level of false advertising, which could be criminally prosecuted by the state attorney general’s office. The false advertising claim may also result in the court’s awarding the parents the monetary costs of the midwife’s service.
Finally, given the good result for the delivery, it is unlikely that a viable claim for malpractice or negligence exists. The necessary element of damages for such a cause of action appears missing. However, in this situation the parent’s motivation for pursuing legal recourse must be somewhat altruistic, that is, protecting others and punishing a liar. Realistically there doesn’t appear to be much of a financial incentive for action under these circumstances.
Answer by Salvatore J. Russo,
Executive Senior Counsel,
New York City Health & Hospitals
Corporation, New York, New York
States differ widely as to how they regulate lay midwifery. This means that the quantity and quality of available midwives varies greatly from one state to the next. Some states make traditional midwifery illegal, no matter what. Other states have laws regarding certified nurse-midwives, but these laws do not mention traditional midwives at all. In those states, lay midwives are generally considered acceptable as long as they follow the same rules as the rest of us in not engaging in the unlicensed practice of medicine. In some states this may mean that midwives are banned from asking for payment for their services.
LEARNING THE LINGO
Traditional or lay midwifery: Midwives who are not licensed by a state and are not required to be trained as nurses.
Some midwives are part of a religious group and practice only within that specific community. There are currently an estimated 2,000 to 3,000 traditional midwives practicing in the United States. It is difficult to get an accurate count, however, because these midwives are not licensed.
Lay midwifery is considered in some states as the unlicensed practice of medicine, which is illegal. Midwifery is considered practicing medicine because courts have held that pregnancy is a physical condition that requires medical attention, the use of medical instruments, and possibly drugs. Those are the essential factors in practicing medicine, which only licensed doctors are allowed to do.
Midwives are rarely brought up on charges of practicing without a license, although it occasionally does happen. In California, several women acted as traditional (unlicensed) midwives for women in childbirth, even though a California law banned them from doing so. The women argued that the law deprived pregnant women of their right to privacy. The court said that the law against attending and assisting a pregnant woman in childbirth did not violate the expectant mother’s right to privacy. The court said that the state has an interest in the life and the well-being of the unborn child. Thus, the state could require midwives to be licensed, even though that would significantly reduce the number of midwives available to expectant mothers.
At this point there is no incentive for midwives or expectant parents to go to the courts for an expensive and lengthy battle over birthing rights. The cost of the lawsuit would outweigh any financial gain for midwives. The lawsuit would likely take years—or at least longer than nine months. On the rare occasions when midwives have sued to try to be able to practice without being licensed, the midwives usually lose the court battle.
For the most part, traditional midwives regulate themselves within their states. Opinion is sharply divided over whether that self-regulation is enough to guarantee quality. Some observers point out that qualified midwives perform good work and provide an alternative for parents, but unqualified, unlicensed midwives can (and unfortunately sometimes do) cause real harm.
Some self-regulation programs appear to have real merit. In Oregon, the Oregon Midwifery Council puts forth its own certification standards for traditional midwives and requires intense training for its midwives. It offers advanced certification for midwives to specialize in higher-risk births, such as breech or multiple births. Some of the Oregon Midwifery Council’s regulations were later enacted by the state legislature to license traditional midwives and to allow them to be reimbursed under the state Medicaid program.
CAN THE EXPECTANT MOTHER BE ARRESTED?
So what is your legal risk if you use a traditional midwife? Keep in mind that there is no law that says the expectant mother cannot hire a traditional midwife. The laws apply to the midwives. You cannot be arrested or charged with a crime for having a midwife deliver your baby, although an unlicensed midwife could be charged with the unlicensed practice of medicine for assisting you in childbirth.