Why Do So Many People Believe Out-Of-Hospital Birth Is Illegal?

Midwifery is an ancient art and profession that spans almost all cultures since time immemorial. Over the past 150 years, midwifery in the United States suffered massive social, cultural, and political setbacks that directly impacted public perception of the safety, legal status, access to, and affordability of out-of-hospital birth (nowadays known as homebirth). There are incredible historical books that highlight these setbacks for the reproductive rights/childbirth enthusiast. A short list will be provided in the resources section of this post. What follows is a very distilled overview of some of the changes of out-of-hospital birth over the past 150 years. 

Prior to the 1900s, birth almost exclusively took place out-of-hospital, attended by traditional midwives. In the 20th century, the practice of traditional midwifery/out-of-hospital birth became criminalized. While there are a multitude of reasons why this occurred, it was largely due to the patriarchal hospital and physician-led monopolization of healthcare through state medical practice acts that defined healthcare parameters, including who can practice. Women and marginalized people were excluded and thought of as incapable of providing care. During this time, the presence of traditional midwifery rapidly declined; however, there were areas in the United States, particularly in the rural south, where Granny Midwives continued to provide care to marginalized people and mostly people of color. In the late 20th century, there was a push to legalize and regulate the practice of out-of-hospital midwifery, which continues today.

Presently, about 10% of births are attended by licensed midwives in the United States, mostly in the hospital and a small percentage out-of-hospital. How small? Planned out-of-hospital births account for .99%, while births taking place in freestanding birth centers account for .56%.(1) Why is this statistic so low when evidenced-based studies suggest that out-of-hospital birth is a safe, if not a safer, option for low-risk pregnancies compared to planned hospital birth? The social, cultural, and political setbacks of the past century remain deeply embedded in our society, and in part, fuel the belief that out-of-hospital birth is illegal and dangerous. 

In order to understand the legal status of midwives practicing out-of-hospital birth, it is important to understand the different types of midwives currently providing these services. The following description of types of midwives was written by the Midwives Alliance of North America. (2)

 

Nurse-Midwives

Certified Nurse-Midwife (CNM): 



Certified Nurse-Midwives are trained in both nursing and midwifery. Their training is predominantly hospital-based. Although their training occurs in medical settings, the CNM scope of practice allows them to provide care in any birth setting, including home birth.

 

Direct-Entry Midwives

Direct-entry midwives are trained to provide the Midwives Model of Care to healthy women and newborns primarily in out-of-hospital settings. They do not have a nursing degree in midwifery.

 

Certified Midwife (CM):



Certified Midwives are individuals who have or receive a background in a health-related field other than nursing, then graduate from a masters level midwifery education program. They have similar training to CNMs, conform to the same standards as CNMs, but are not required to have the nursing component. There are very few states that recognize this credential. 

 

Certified Professional Midwife (CPM): 


The vast majority of direct-entry midwives in the United States are Certified Professional Midwives. The CPM is the only midwifery credential that requires knowledge about and experience in out-of-hospital settings. Their education and clinical training focus on providing midwifery model care in homes and freestanding birth centers. In some states, CPMs may also practice in clinics and doctor’s offices providing well-woman and maternity care.

 

Traditional Midwives

In addition, there are midwives who–for religious, personal, and philosophical reasons–choose not to become certified or licensed. Typically they are called traditional midwives. They believe that they are ultimately accountable to the communities they serve; or that midwifery is a social contract between the midwife and client/patient, and should not be legislated at all; or that women have a right to choose qualified care providers regardless of their legal status.

 

So, why do so many people believe out-of-hospital birth is illegal? 

 

Let’s take a moment to celebrate the advancement of out-of-hospital birth. Since 1980, states moved to license and regulate midwives that practice out-of-hospital birth. As we all know, change takes time. In the language of birth, political change often takes two steps forward and one step back. 

There is both misperception and validity to the belief that out-of-hospital birth is illegal in the United States. As outlined above, there are several different types of midwives recognized in the United States. This creates confusion about the legality of out-of-hospital birth. In many states, Certified Nurse-Midwives can legally practice out-of-hospital birth. Here is a link to the American College of Nurse-Midwives website providing a search engine designed for you to find a CNM providing services near your location and in your choice of setting. 

Certified Professional Midwives are not legally recognized in every state. In “17 states, as well as three U.S. Territories, Puerto Rico, Guam, and the US Virgin Islands, Certified Professional Midwives (CPMs) are at risk of criminal prosecution for practicing medicine or nursing without a license, which drives the practice of midwifery underground and creates barriers to access for women seeking maternity care.” (3) These states include Connecticut, Massachusetts, Illinois, Indiana, Georgia, North Carolina, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Kansas, North Dakota, Mississippi, West Virginia, and Kansas.

Traditional Midwifery falls into the category of illegal in all United States and territories. Without a nationally recognized certification and state-specific legal regulation, a midwife practicing traditional midwifery is subject to criminal persecution. Here is a recent example of a Certified Professional Midwife being charged with 95 counts(4) of felony in the state of New York (CPM’s are not legal) written by Tyler Pager in the New York Times. (5)

Studies show that “[out-of-hospital birth] is a safe option for healthy women with a skilled midwife and timely access to medical care when needed. Childbirth has inherent risks, as does all of life. Each birth setting carries a particular set of risks and benefits. Each woman must evaluate which set of risks and benefits are most acceptable to her and most in keeping with her belief system and her family’s best interests.”(6) As a consumer, you have the opportunity to make informed decisions about your care. Below is a list of resources to help you navigate birth in your state:

 

The Big Push For Midwives

The Big Push for Midwives is a national campaign to secure regulation and license laws for Certified Professional Midwives (CPMs) in all 50 U.S. States, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.

 

Midwives Alliance of North America

State-by-state listing of legal status and state specific resources

 

American College of Nurse Midwives

 

Cesarean Section Rates by State

 

Every Mother Counts

Every Mother Counts’ mission is to make pregnancy and childbirth safe for every mother, everywhere. Check out their series on CNN, Giving BIrth in America.

 

Reproductive Rights/Childbirth Books

Delivered by Midwives: African American Midwifery In The South, by Jenny M. Luke

Birth as an American Rite of Passage, by Robbie Davis-Floyd

Making Midwives Legal: Childbirth, Medicine, and the Law, by Raymond DeVries

Bearing Meaning: The Language of Birth, by Robbie Pfeufer Kahn 

Killing The Black Body: Race, Reproduction, And The Meaning Of Liberty, by Dorothy Roberts

Pushed by Jennifer Block

Born In The USA, by Marsden Wagner

Birthing Justice: Black Women, Pregnancy, and Childbirth, by Julia Oparah and Alicia Bonaparte

Reproductive Justice: An Introduction, by Loretta Ross

 

Choosing a birthing environment and provider is an incredibly personal decision. Understanding your options to make an informed and empowered choice can positively shift your trajectory and experience of care. This includes knowing that there are more options than commonly thought for maternity care outside the hospital setting. I hope this post is informative and dispels some of the common false beliefs about the availability and legality of out-of-hospital birth and providers.

 

Juliana Taylor, CPM, LM, MEd

@JulianaTaylorVT

www.JulianaTaylor.com

 

 

 

References:

  1. MacDorman, Marian F, and Eugene Declercq. “Trends and state variations in out-of-hospital births in the United States, 2004-2017.” Birth (Berkeley, Calif.) vol. 46,2 (2019): 279-288. doi:10.1111/birt.12411
  2. https://mana.org/about-midwives/types-of-midwife
  3. http://pushformidwives.nationbuilder.com/cpms_legal_status_by_state
  4. https://www.democratandchronicle.com/story/news/politics/albany/2020/01/29/elizabeth-catlin-enters-not-guilty-plea-finger-lakes-midwife-case/4611106002/
  5. https://www.nytimes.com/2019/03/05/nyregion/mennonite-midwife-arrest.html
  6. https://mana.org/sites/default/files/pdfs/MANAHomebirthPositionPaper_0.pdf

 

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