Midwives Fight to Make Their Practice Legal Again in Delaware

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.”

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  • Dawn9476

    Like homeschooling and being against vaccines, home birth is something that is practiced by women on both sides of the political spectrum.

    • Arekushieru

      A couple of things, though:

      With the way they are currently practiced, homeschooling and home birth are primarily left up to the purview of women in the same way polygamy is *believed* to be ‘left up’ to the women involved and the same way FGM is left up to the women in their communities. Patriarchal institutions reinforce what they consider acceptable behaviour by rewarding women for making the choices they are given within their narrow frameworks. For home birth, not only are women taught that we must accept how our bodies are designed, with this purpose in mind, but also accept that this is how it should (always) be/have been. Then, following from that, we are given to believe that the natural thing is the only good thing to do, while downplaying anygi adverse effects that could be caused by doing something so ‘natural’. As a reward for giving birth to a live baby (whether or not the woman survives it) the woman is held up as the gold standard for everyone else to reach. In homeschooling, it is considered better if the woman is un(der)educated, because they can’t pass on ‘dangerous learning’ to the children they are teaching, especially females. As a reward these women may be given celebrity status or, at the very least, celebrated in many forms of media near and far, as if she is but a rare example of a dying breed. When the reverse is actually MORE true.

      As for opposing vaccines, I think many liberal women actually oppose keeping/making them mandatory. Because they realize it violates the fundamental rights of bodily autonomy and medical privacy. While conservative women oppose it on the basis of either religion or widespread misinformation.

  • Eliz7

    I have had 3 children born at home. I had my first baby in the hospital, and while it was not a terrible experience, the following 3 home births were a revelation. I feel great sadness for women who could give birth in a homely supportive situation, but who are afraid because of the scare propaganda that we see everywhere. I am glad that there are emergency back up resources available when they are occasionally needed. On the other hand, studies of home birthing program run by midwives shows an extremely low occurrence of caesarean section, infections, death, or other difficulties in comparison to hospital births.

    Another problem I see is the strange sexual mores of this society. Anything fun or messy is often looked at with disapproval. Sex can be fun and messy and birthing is all part of that. I have noticed, from experience, that the birth of a child can be the ultimate orgasm. Many people are shocked when I say that, but I have heard and read other women say that also. Sex and birth are sacred life processes that have been perverted by our culture into sensational, male dominated, money making prurience.

    Birthing as managed at home by skilled and loving women who understand explicitly what is happening has a much greater chance to be healthy and life affirming. I am glad for the support of caring men and glad for technical back up that is available through modern advances in medicine. But I totally reject the ignorance and greed of the money making mindset of pornography and profit driven hospital corporations that feed on sex and maternity “care”. There is so much to say about this, so, let’s talk.