The gentlebirth.org website is provided courtesy of
Ronnie Falcao, LM MS, a homebirth midwife in Mountain View, CA

Always speak about your professional midwifery work as legal

Whether you are a CNM, a licensed Midwife, a parent, a Birth Activist, or other, I invite you to read this letter and send me your comments.         Linda
 

Dear Practicing Midwife,                                        16 Jan 2006,revised 30 May 2006

You and midwifery, families, and the future of birth, are at a critical crossroads.

Individuals DO matter.

What you do now counts for a lot, for all of us, and for our children’s children.

Whether or not you are a licensed midwife, please, please, please do not EVER say that what you/we are doing is illegal. Not any of it, not anytime, if it can be read or overheard, i.e. in public. In private settings, with no chance of being overheard, discuss what you wish.

Accurately and actually that particular status (legality) remains to be seen. It is created by us, as we practice, lobby, do PR, and assist families.

The Santa Cruz midwives’ attorney, Anne Flower Cummings, sat the 3 of us down with our defense team and ran through it with us. The rest I’ve learned the hard way.

The law is determined by:
 

1. Case precedent…applying to similar circumstances if prosecutors choose to agree.

2. Legislation, “the rule of law”

The more specific the wording the less wiggle room.
 

3. Regulations, can have the power of law, do not have to go through the legislative process, and yet are directly affected by special interest groups.

I have observed well-meaning midwifery groups and some individuals, scurrying to codify a very specific standard of care, criteria for home or birth center birth, or the practice of midwifery.

Sometimes it’s a punitive group such as a state chapter of ACOG or a midwifery board ostensibly appointed to facilitate the “healthy” practice of midwifery that attempts to be exceedingly specific about acceptable midwifery practices, in order to restrain, hobble, and eventually eliminate the licensed practice of midwifery.

When either of these groups has been successful in getting their standards legally recognized, then the ability of the individual practitioner of midwifery to make decisions on the basis of the best care for that particular woman or baby is significantly abridged. Standards of care change over time.

Because of extreme, specific, provisions in Florida’s original Midwifery Licensing, if I had gone for care to a Florida licensed midwife for either my second or third birth, (both successful, out-of-hospital, joyous, and resulting in the births of healthy 7 ½ pound babies) my midwife could have lost her license. My son was 28 days early, and my last daughter was born at 38 weeks, but by then I was “elderly” (41) and I had a “history of premature birth”.
 

4. What the local, regional or state attorney general and/or DA choose to prosecute.

An action or activity may be specifically outlawed, yet it may be the political or personal choice of the prosecutor not to pursue legal action.

Connecticut used to outlaw the use of condoms even by married people, yet no one wanted to prosecute. A married couple turned themselves in, insisting on prosecution, with the purpose of changing the law. (1970s)
 

5. What the Police or Sheriff’s Department chooses to prejudge as illegal.

While the California legislature was considering its original abortion legalization act, several physicians known to be actively performing abortions were not arrested, or their cases were postponed, pending the outcome of the legislation Ronald Reagan eventually signed into law.

When the same thing was happening with midwifery legislation, many midwives practiced freely pending the outcome, while others were prosecuted; victim of pressure from individual antagonistic physicians, or the propaganda of local decisions to “protect the public” based on limited understanding of  the difference between obstetrics’ and midwifery’s standards of practice.
 

6. Private and public pressure.

District Attorneys and many judges are elected officials, as are assorted Mayors, County, and State Commissioners, Governors etc. They set the priorities, based on their personal, political, and professional biases.

After we lost at the California Supreme Court level, the “Bowland” case was turned back over to the Santa Cruz District Attorney’s Office for prosecution. The level of community support was so immense that the charges against us were dismissed. Interestingly enough, the judge who dismissed all the charges against us had been the prosecuting District Attorney, now an elected judge.
 

7. Legal Advice.

Not more than a month prior to the Santa Cruz bust, we had an attorney review of California case law and all legislation for precedents. He discovered that two women still held their California licenses to practice Midwifery, and the law was still on the books. He said, as long as we did no medicine or surgery, we appeared to be practicing within the law.

 The California Department of Consumer Affairs did not agree. In their Search Warrants when they arrested the three Santa Cruz midwives, they cited the phrase Raven Lang used in “The Birth Book” as evidence. She had stated “We know what we are doing is illegal.”

Practicing midwives, please read the complete From Calling to Courtroom web site. It is incredibly useful even for someone with a hospital-based practice. If you have already read it, it would still help to read it again. It is a goldmine.
 

8. Community Standards of Practice.

If one community does not recognize a specific management decision as acceptable (for example, the wisdom of waiting for spontaneous labor after membranes spring a slow leak), than ANYONE, Ob, CNM, licensed midwife, or not, who “violates” that standard becomes legally liable and at risk of both civil and criminal attack.

It doesn’t matter if the actions taken meet the standard of care of obstetricians and midwives on the east coast or in Sweden, if their actions do not meet “community standards”, they are vulnerable.
 

9. Personal choice.

Each day, each of us decides to comply with law, precedent, regulation, community practice…or not. We decide for ourselves what is lawful by our actions…or to challenge the law as it stands.

Do we jaywalk? Fudge on taxes? Speed?

When it would cost a family $900, if we sent her to the hospital for suturing, we asked the physicians we knew to teach us suturing. It was a logical step for us and for them. We wouldn’t advertise that service or skill, nor would we allow any witnesses in the room besides the dad when we sutured. We also would wait until we were certain that there would be no hospital transfer for hemorrhage. It was also not charted.

In most states suturing is considered the practice of medicine since it involves penetration of flesh, unless the person holds a license allowing that practice. In some states, where midwifery without a license is not illegal, it may be considered to be part of the management of the normal birth process, yet the use of a local anesthetic may be prohibited without a license since it is a prescription drug. A phrase as general as “management of normal birth” covers suturing, with a local, by a licensed midwife in Oregon, as long as she meets the additional proviso of attendance at a Midwifery Board-approved training seminar.

In the old days, farmhands and family had their wounds stitched up by the woman of the household, as she was an accomplished seamstress in her own right. The Farm midwives had a lot of practice suturing when all their city-bred folk started using chainsaws!

Each state has the legal right and responsibility to set up its licensing laws as its citizens and legislature see fit. When a parent exercises her right to choose a certain birth path, it should be another woman’s right to be there to render assistance as needed, whether she calls herself a midwife or not.

When an individual objects to the law as it is written or enforced, and chooses to continue to practice for reasons of conscience, then she is a conscientious objector. She risks jail, the loss of her spouse, her home, even the support of her friends and family.
 

Legal Problems

When a midwife encounters a problem with a mother or baby, and subsequently has legal problems, she deserves the support of other midwives.

Privately, not publicly*, it is appropriate to discuss management decisions. We need to do this actively, and as a community of midwives.

Community Standards and Informed Consent

It is appropriate to apply MIDWIFERY Community Standards to a midwife’s actions. It is appropriate to require Informed Consent in non-emergent circumstances.

It is not appropriate for anyone to assume that Obstetric standards set by surgeons for their convenience should be the standard of practice for everyone. If standards are based on scientific evidence and the principles of Informed Consent, and have included the study of physiologic and low-intervention management options, then they will serve as guidelines for practice by most practitioners.

Informed Consent requires the objective discussion of alternatives to the primary recommendations of the practitioner, the scientific basis for the various alternatives, and provision of alternative care if chosen by the “patient”.

Each midwife deserves the support of all other midwives. Giving birth is challenging, midwifery even more so.
Linda Bennett
Portland, Oregon
lbennett649@yahoo.com