Currently, in Delaware, it’s effectively illegal for a trained, certified midwife to attend a home birth. A new bill introduced in the state legislature last week aims to change that, and is one example of how a growing movement of midwives is seeking to change inconsistent state laws that often criminalize their practice.
Midwifery is not technically forbidden under Delaware state law, advocates told RH Reality Check, but certified professional midwives (CPMs) hired by pregnant women who want to give birth at home face a legal catch-22. CPMs undergo three to five
years of training and assessments to become nationally certified, but they still usually need to be licensed in individual states. To get a license in Delaware, midwives have to form a collaborative agreement with a doctor—but no doctor will sign such an agreement, because most malpractice insurers won’t cover CPMs or home births. And if a midwife delivers a baby without obtaining this agreement, she faces a felony charge and a fine of at least $1,000 for the unauthorized practice of medicine. These criminal charges were made explicit last year in a contentious bill that passed last-minute at the end of the session.
“The Department of Health in Delaware wrote rules that make no sense,” Susan Jenkins, steering committee member of the Big Push for Midwives Campaign, told RH Reality Check. There are also only three CPMs in Delaware, Jenkins said, two of whom have been issued cease and desist orders for attending home births and who could face felony charges. (Jenkins is also an attorney who has represented one of those women.) The third CPM did manage to get a collaborative care agreement signed, but that’s because she only works with Amish clients, who generally don’t sue or go to hospitals.
Jenkins noted that the state’s small number of practitioners is mostly due to the harsh regulatory environment, and that more would be likely to practice in the state if they could get licensed. Helping midwives get licensed is the goal of HB 319, sponsored by Rep. Paul Baumbach (D-Newark), which would form a council to write rules and regulations for the practice of midwifery. The Midwife Advisory Council’s rules would be subject to approval by the Board of Medical Licensure and Discipline, and the council would be made up of three CPMs, a certified nurse midwife (a midwife who is also trained as a nurse), an obstetrician, and a pediatrician.
About 20 midwives, doulas, and expectant mothers lobbied Delaware legislators to support the bill, sharing their stories of successful home births and arguing that mothers should be able to legally choose the birth option they feel is most right for them.
Delaware isn’t the only state where a tangle of old and new laws and regulations has either directly or indirectly outlawed the practice of non-nurse midwifery. According to data from the Big Push for Midwives Campaign, as many as 22 states do not legally authorize CPMs to practice. Midwives won victories most recently in California (where a new law provided for licensure and removed a requirement that midwives be supervised by doctors) and Hawaii (where two bills seen as hostile to midwives were defeated).
Katie Prown, a Big Push for Midwives steering committee member who has worked on pro-CPM campaigns in 19 states, told RH Reality Check that midwife advocacy occupies a strange ideological space: It brings together women from both the pro-choice and anti-choice movements, and it leads to battles in states with either liberal or conservative legislatures. In the latter case, she said, “Whoever the majority party is, the caucus is divided, and we always find supporters [of hostile legislation] owe a lot of their campaign cash to the medical lobby.”
A 2006 battle for pro-midwife legislation in Wisconsin took legislators completely off-guard, Prawn said, because of the strength and breadth of the grassroots movement behind it. “The feedback we got was that this was the first bill in years where people were hearing from literally every single district in the state,” Prawn said. “The most conservative and the most liberal member of the state senate were both sponsoring the bill. Nobody had seen that in years.” The kicker, she said, came when the campaign flooded the halls of the state house with Amish and Mennonite supporters of the bill to flummox opponents who had been invoking the Amish in their arguments.
Critics of midwifery say home births are less safe than hospital births, while midwives point to more favorable research and say studies claiming home births to be unsafe are biased. But regardless of where the scientific consensus ends up, advocates say, there will always be some percentage of women who do not want to deliver in hospitals, and the goal should be making non-hospital births safer, not outlawing them.
“It is just lazy to assume that all the people who choose home birth do so because Ricki Lake told them to,” said Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, referring to Lake’s 2008 pro-home birth documentary The Business of Being Born. “They have needs and concerns that aren’t being met in hospitals and birthing centers, and instead of pushing them further to the margins, we need to try to address those needs and make sure that the care they get is as safe as possible.”
Moreover, Diaz-Tello said, since even relatively safe activities will never be 100 percent safe, “safety” is often used as a pretext to carry out other agendas, especially those that end up harming women. States like Texas and Mississippi, for instance, have nearly regulated abortion out of existence in the name of “safety,” she said.
“This is why birth is such a feminist issue and a reproductive rights issue,” Jenkins said. “It’s a choice that women and their families should be able to make.”