California College of Midwives / ACDM
3889 Middlefield Road
Palo Alto, CA 94303
650 / 328-8491

                                                                                December 31, 2002

Patricia E. Chase, M.D.
Medical Consultant
Medical Board of California
1426 Howe Ave, Suite 100
Sacramento, CA 95825

Exploration of Specific Identified Risk Factors in Healthy Women – Breech, VBAC

Table of Contents

Dear Dr. Chase

I enjoyed meeting you at the Midwifery Task Force meeting on November 7th. I apologize for the delay in contacting you per our conversation after the Tack Force meeting. On behalf of the members of the California College of Midwives, I look forward to working with you in regard to the regulatory process for SB 1950.

I have already forwarded a letter to Teri Kizer in response to the Board’s request for feedback on your October 6th proposal, which was rather acrimoniously discussed at length at the Task Force meeting in November. My earlier letter focused primarily on defining an “appropriate” standard of care and crafting regulatory language relative to physician supervision. I continue to believe it possible to use the regulatory process to greatly improve the ability of LMs to be in compliance with this provision and to vastly expand the access to appropriate obstetrical services by childbearing women. In this letter I wish to explore possible methods, regulatory and otherwise, to design a logical rational response to this apparent dilemma.  

I will only address the technicalities of practice standards and physician supervision and focus mostly on the issue of “special circumstances” – i.e., identified risk factors in a healthy woman with a normal pregnancy for whom one can reasonably anticipate a spontaneously progressive labor, normal vaginal birth and healthy neonate. This would include normosomic frank breech; post-cesarean pregnancies with low transverse incision / single previous CS or previous NSVD and twins at term. These are of particular concern to childbearing women because they are physiologically “normal” states of parturition but at present the obstetrical community no longer offers the option of a “normal” vaginal birth. Because the issue of elective Cesarean and post-cesarean births is so controversial and technically complex, I have enclosed a stand-alone document that is based on a scientific examination of the issues, with excerpts, references and citations of published studies.

Appropriate Standard of Care: California licensed midwives are resolute in their opinion that the only appropriate standard of care for licensed midwifery in the state of California would be one developed primarily by the professional organizations of California licensed midwives. This is the origin of the standards used by the professions of nurse-midwifery and obstetrics. Fortunately, the California College of Midwives and the California Association of Midwives, which is the oldest organization and has the largest membership, both have similar documents that fulfill the criteria for a professional “standard of care”. These were developed in conjunction with the International Definition and Code of Ethics for a Midwife, as well as traditional standards of midwifery practice used in various jurisdictions around the world and recommend by the W.H.O. These standards of practice are similar (but not identical) to those developed by the American College of Nurse Midwives (ACNM) and ascribed to by California certified nurse-midwives (CNMs). A specific variation of these sources has already been recognized as “appropriate” for community-based midwifery practice by Judge Roman in the Alison Osborn case in August of 1999.

Documents from all these sources formalize the philosophy and the principles of competent practice and provide general standards of conduct rather than “laundry lists” of specific directions. The wisdom of this method rests in the ever-changing nature of evidenced-based health care in which the advance of scientific discovery continually changes the science-based response to specific medical situations. For example the CDC changed its recommendation relative to antepartal testing for Group B Strep just this last June. In August, they modified those protocols yet again. By the time specific states of pathology of this sort are identified and regulated, the medically appropriate response has often dramatically changed.

The purpose of professional standards of practice is both for consumer safety and to advance the professionalism of community midwives. A secondary function is a measure of an individual midwife’s care as competent (versus negligent). In this regard the function of Standards is to protect competent midwives as well as providing the structure for disciplinary action against incompetent / negligent midwives. Protection of the competent midwife is actually quite important. Without this formal guide for midwifery practice, which first guides and then guards the individual midwife who adheres to this professionally defined standard, there is no positive model to both protect consumer interests and stabilize the profession of midwifery. Therefore standards must be more than just a list of contraindications and prohibitions. They also must establish the positive specifics of standardized practice so that we can identify midwives who have successfully met that standard and are thus to be held blameless even in circumstances where midwifery standards differs substantially from medical standards.

Legislative History: California midwives have been working with Senator Figueroa for the last three years in an attempt to amend the LMPA so that midwives would be able to be fully compliant with our licensing law. Prior to the passage of the LMPA in 1993, non-nurse midwives in California introduced seven separate legislative bills and worked for 17 years to get a midwifery licensing law passed. Midwives want to be professionally licensed and we want to be able to be in compliance with the provisions of that licensure. Despite 25 years of earnest efforts to bring these things about, LMs in California cannot currently comply with the physician supervision provision as physicians uniformly and almost universally are unable to provided the mandated supervision (due to malpractice carrier restrictions) or unwilling to do so (see copy Norcal letter May 1999). California midwives have merely gone from being prosecuted for practicing midwifery without a license to charges of practicing licensed midwifery without a physician supervisor.

One of our concerns about the Washington State Home Birth Project proposal as communicated in the October 6th letter is how LMs would manage those situations in which the midwife was directed by the regulation to ‘consult’ with physicians but local physicians continued to refused to provide any such consultation, either by phone or otherwise. The enclosed a copy of a letter by Norcal specifically forbids physician under contract with Norcal Mutual to provide any advice to licensed community midwives, either by phone or in person, lest they be “accused” of having a de facto supervisory relationship with the midwife and thus create vicarious liability for the malpractice carrier. This particular letter specifically addresses emergency situations by saying that the only advice that insured physicians may render in an obstetrical emergency is to recommend that she call 911. Period.

LMs don’t have to “consult” with a physician in order to avail our clients of emergency medical services. In order for regulations requiring the midwife to consult with a doctor to work, we must either have doctors who will answer their phones and provide their consultative services or we need a regulatory mechanism to acknowledge this situation – for example, a directive to the LM to file a formal ‘incident report’ each time this occurs so that the midwife can establish her good faith attempt to comply and the medical professional’s refusal to perform.

Undue Influence of Organized Medicine: This deplorable and dangerous situation which blocks midwives and mothers from appropriate medical services was brought about on purpose by organized medicine for its own political purposes. At first glance, physician supervision (including mandatory consultation) seems to be a sensible and beneficent stepping stone to guarantee timely and appropriate entrance to medical care. In reality physician supervision, as currently interpreted, is a stumbling block that prevents childbearing women who are seeing a licensed midwife from receiving preventative and essential services from physicians in their community.

This political agenda is clearly revealed by the various obstetrical organizations (ACOG and CAOG -- see enclosed Ob.Gyn.News Sept 15, 1993). This article states that the California Medical Association successfully demanded a supervisory clause (which created unnatural and unnecessary vicarious liability) as a “disincentive to home birth”. Their plan was to make it impossible for LMs to be in compliance with their licensing act via the “poison pill” of mandatory supervision which was and is impossible for doctors to provide in its current “unregulated” form. This type of unlimited, uncontrollable liability is prohibited by virtually every malpractice carrier for good reason –it doesn’t work for anyone, under any circumstances and in fact, that is why it was chosen. However, the 1999 decision by Judge Roman calls into question the idea that physicians would inevitably be the target vicarious liability and opens the way for important regulatory relief. 

In 2000 Senator Figueroa introduced SB 1479 specifically to remedy this problem. In its original version, it would have replaced the vicarious liability of supervision with the “firewall” of physician collaboration, in which no liability accrued to the physician unless and until the doctor actually provided care directly. As we all know, this legislative relief did not survive in SB 1479. According to Senator Figueroa, SB 1950 establishes a regulatory framework for an “appropriate standard of care” and “level of supervision” via regulatory recognition of the appropriate standard of care and level of physician supervision as identified by administrative law Judge Roman in the Alison Osborn decision. According to Judge Roman:


"The effect of each model posited by the parties is to meet the Legislature's primary interest in the implementation of license practice acts: protection of the public. Sufficient evidence has been provided this tribunal to competently conclude that properly conducted midwife-led home births are as safe as births conducted by physicians in hospitals when affected within standards of practice. Accordingly, without dismissing either model or deferring to either model, protection of the public can be effectuated, and the licensure of professional lay midwives promoted by this tribunal's adoption of the midwifery model of practice to licensed midwives as referenced in Findings 14, 17 - 21, and 23"

Judge Roman’s ruling recognizes the legal difference between the practice of medicine as applied to medical complications (which is statutorily prohibited) and the practice of midwifery, which appertains to healthy women with normal pregnancies. For example his ruling states:

“Unlike physicians, physician assistants, physician assistant midwives, registered nurses, or certified nurse midwives who practice within the context of a medical model, licensed midwives practice within the context of a midwifery model. Complainant contends that the medical model should function to define the scope of a midwife's practice.”

Judge Roman rejected that opinion of the MBC. His decision established that:

1) Midwifery is a separate and distinct discipline from that of the practice of medicine

2) Midwifery standards of practice are unique from that of medicine

3) It is inappropriate for midwifery practice or its practitioners to be judged by medical doctors imposing medically-based standards

The Osborn Decision is available on our web site ( to make familiarity with it convenient. The easiest way to find it is to click on the “Site Search” subdirectory top right on the home page and type in the words “Alison Osborn Decision”. You will note that Judge Roman clearly acknowledges the duty of the midwife to fully inform and recommend medical care to any mother with an identified risk factor. He simultaneously acknowledged the right of the fully informed childbearing woman to formally decline in writing the medicalization of her pregnancy, even in the presence of a significant risk factor such as frank breech. It should be noted here that the perinatal mortality for all breech births in the large multi-center study (which included footling breech babies) was identified as one and a half percent (N =5) for CS and five percent (N =13) for vaginal birth.

The numerically small quantity of vaginal breech mortality included two SIDS deaths (obviously not attributable to delivery). The study’s recommendation – that it was ‘safer’ to deliver all breech babies by Cesarean section -- did not account for any of the excess maternal mortality and morbidity from Cesarean surgery such as hemorrhage, blood transfusions, emergency hysterectomy, pulmonary embolism and post-op infection. Elective CS delivery triples maternal mortality -- 1 maternal death out of 5,000 surgeries versus 1 out of 16,666 for vaginal birth. While elective Cesarean surgery provides a theoretical advantage of 3 ½ %, which is statistically significant, this number also does not factor in ANY of the complications occurring down stream in post-cesarean pregnancies -- infertility, miscarriage, abnormal placentation (previa, abruption and accreta/percreta) and emergency hysterectomy, uterine rupture or neurologically-damaged infant. According to a study on the risks of Cesareans, one baby is subsequently lost in a post-cesarean pregnancy for every 500 primary Cesarean performed.

While there are many situations in which parents seek home-based care in the presence of less than idea circumstances, the ones that are of the most regulatory interest are those conditions that the obstetrical community currently declines to offer the option of a normal vaginal birth. Unfortunately there is no “zero risk” option, no perfected solution at present for any of these situations. Informed consent theory and the legal aspects of parental autonomy acknowledge the right of a childbearing couple to decline “prophylactic” Cesarean surgery which puts the mother’s life and babies in future pregnancies at risk in return for a statistically small gain which the parents have no guarantee of receiving. 

The current ACOG policy against vaginal breech births (even for a multipara with a ‘proven’ pelvis --  i.e., had delivered vaginally before without problem) is a legal strategy chosen without input from the childbearing families affected by it as best protecting doctors against litigation. This is not of itself unethical except that ACOG goes to great lengths to hide this agenda and instead, makes it seem that the mother who wants to avoid non-emergent Cesarean delivery is selfish and irrationally putting her baby’s life at risk. Were the same theory of “zero risk” to be applied the mother’s care, virtually all routine obstetrical interventions would have to be prohibited as these very same interventions dramatically increase intrapartum and post partum complications, the Cesarean rate and maternal mortality.

Organized medicine went to great lengths over the last century to convince the childbearing population that choosing an obstetrician (instead of a midwife) guaranteed a perfect outcome. These assumptions and expectations were never founded in any scientific reality. Predictably, unrealistic expectations cannot be met and so when physicians fail to deliver the on the zero risk promise, they got sued and the malpractice rate sky-rocketed. In regard to breech babies the situation is further devolved by absence of appropriate training, as obstetrical residents are no longer being afford the opportunity to manage vaginal birth since Cesarean surgery is now the default standard.

Statutory Foundation for “Exceptional Circumstances”: Judge Roman’s ruling in the Osborn case identified a statutory foundation for permitting LMs to provide care under a variety of these exceptional circumstances. His ruling states:

“… to the facts and law herein; particularly where, as here, the Legislature failed to specifically preclude breech presentation and relied, instead and consistent with its deference to developing healthcare models, on professional standards of care.”  (emphasis added)

Judge Roman established that such a professional standard of care for community midwives must also include specific criteria applicable to the status of the pregnancy and the midwife’s skill level. This is not an “anything goes” free pass but falls squarely within a regulated framework of responsibility on the part of the midwife and includes advanced practice training when appropriate. LM Osborn completed the same Advanced Life Support in Obstetrics (ALSO) course as attended by family practice physicians in management of vaginal breech delivery. The mother was fully informed and declared her decline of medical advise in writing. The criteria for home-based care were specified, including the experience level of the midwife and the results of a recent ultrasound confirming a normal weight for the baby and that it was in a frank breech position with flexed head.  Judge Roman commented that:

“A midwife's assistance in a breech presentation that fails to meet such specific criteria violates the midwifery model's standard of care and/or practice and would be unprofessional conduct.” [emphasis added] 

Regulatory Directives: A document developed for this specific purpose would inform the prospective parents that the identified condition (breech, vbac, etc) included a higher than average risk of developing complications during labor and birth and that such complication would be more successfully treated or even prevented in an acute care hospital. For this reason the LM’s formal recommendation must be that women with any of the listed conditions plan to labor and give birth in an appropriate medical facility under the care of professional midwife or physician. The form should permit up-to-date, evidenced-based information specific to the client’s situation and require the mother/parents to sign an ‘informed decline of standard medical care’ should they decline the advise to plan intrapartum care in an institution.

Physician Supervision: Judge Roman’s ruling calls into question the historical assumption that supervision automatically equates with vicarious liability on the part of the supervising physician, thus offering us an opportunity to develop logical principles defining a workable relationship between doctors and midwives. In regard to supervision Judge Roman stated:

“The parties readily acknowledge that "supervision" as set forth in Business and Professions Code section 2507(c) does not "require the physical presence of the supervising physician" and does not purport to involve, as set forth in Business and Professions Code section 2501 (f), the overseeing of activity or acceptance of responsibility for services rendered by licensed midwives as required by such physicians for licensed physician assistants. Clearly, a different standard was intended by the Legislature; however undefined.”  

The technical explanation of this legislative “undefined” standard is explained by the legal theory of “close supervision”. Judge Roman’s decision acknowledged that California LMs provide care without “close supervision” and thus their professional status is consistent with nurse midwifery regulations promulgated by the Board of Registered Nursing.

The theory of “Distinct Calling”: By these criteria, professional midwives are agents in their own behalf – a legal status known as a “distinct calling” – and are statutorily authorized to provide normal ante, intra, postpartal and postnatal midwifery care without “close” supervision. The principle here hinges on the expert or “distinct” nature of the skill in question, as “close supervision” can only be exercised when the supervising authority has a greater mastery of the skill than the agent or employee being closely supervised. Close supervision by a physician could only appertain to aspects of medical practice such as a licensed physician’s assistant (PA) or office employee. By statute, midwifery is definitely not the practice of medicine (section 2507e).

Midwifery is distinct in origin, philosophy, training and practice both from the practice of medicine. Physicians, while trained, skilled and licensed to practice medicine, are not themselves licensed as midwives and are neither trained or experienced in midwifery, especially as a ‘physiological’ (i.e., non-medical) discipline provided in a domiciliary (i.e., non-medical) setting. To avoid incurring unnecessary or “vicarious” liability, a physician would not contract to “supervise” (or purport to exercise control) over the practice of midwifery but would instead defer to the “distinct calling” of the midwife in regard to the conduct of normal midwifery services to healthy women with normal pregnancies, spontaneous labors, healthy neonates and normal postpartum recoveries.

Independence, Inter-Dependence and Dependence: The distinct calling of certified nurse and licensed midwives under physician supervision acknowledges three distinct aspects of the physician-midwife relationship, divided by qualities of medical dependence. The first – independence -- is the classical practice of physiological midwifery as a ‘distinct calling’ in which neither the mother or baby ever required medical services and the physician was never consulted or involved. The second is interdependence between midwife and physician in which information, advice or consultation specific to the management of a particular patient’s care is offered. In this category the medical interface is circumscribed to a specific medical issue or finite period of time. The third is medically-dependent, in which the midwife depends fully on the medical care provider for medical orders. This is co-management in which drugs are being prescribed or administered at the direction of the doctor (for example a GBS+ mother receiving antibiotics) or the mother has an on-going situation that needs the constant in-put of the physician to appropriately manage her or the neonate’s care.

The legal distinction between the practice of midwifery and that of medicine, when fully acknowledged, should protect the physician from liability for domiciliary (non-medical, non-institutional) midwifery care. The legal concept of “distinct calling” delineates litigious culpability along the lines of the enabling legislation's statutory definition of a healthcare professional's scope of practice. As acknowledged by Judge Roman, the appropriate standard of care for midwifery is distinct from that of allopathic medicine.

Thus it is the distinct calling of midwives to practice midwifery and the distinct calling of physicians to practice medicine. With this in mind, physician liability would be limited to negligent commission or omission of medical care provided. The doctor would be shielded from culpability for the care provided independently by the licensed midwife. Other aspects of vicarious liability would also be in abeyance. For example, the doctrines of “borrowed servant” and “caption of the ship” are not applicable to independently practicing healthcare professionals such as midwives who provide care without “close supervision”. This means “vicarious” liability would apply only to those situations where the midwife is a bona fide employee or agent of the physician. Obviously this would not be the case for community-based midwifery practice, as no California physicians employ LMs to provide home-based birth services as agent or employee to the doctor’s obstetrical patients.

Regulatory Remedy ~ Consumer Protection thru Improved Access to Physician Services: When a midwife enters into an arrangement with a physician for medical interface, it is to the advantage of client families by creating continuity of care between the two professions, as well as access to consultative services, referral and emergency services. Therefore, the best protection of the public would be passage of regulations that acknowledge the distinct calling of LMs so as to provide protection for physicians from threat of vicarious liability litigation. This would address the false assumption by malpractice carriers that any interaction between a doctor and LM creates vicarious liability and instead open the way for physicians to make themselves available whenever the mother or baby have a medical need. The language currently used in the BRN regulation for CNMs would be an excellent foundation for this:

 “…..midwives may provide supervision, care and advise to women during inter-conceptual periods, conduct deliveries on his/her own responsibility ... including preventive measures and the detection of abnormal conditions in the mother and child, obtaining physician assistance and consultation when indicated or providing emergency care until physician assistance can be obtained"..  

This is protective and preventative and in alignment with the intent of the licensing law to safeguard the consumer.

Identified Risk Factors - “Special Circumstances” Informed Consent/Decline of Standard Care

The Horns of a Dilemma: A recently published Britain midwifery text --"Professional Studies for Midwifery Practice" -- contains a lengthy chapter on midwifery ethics and ethical decision-making process. This book makes a useful distinction between a problem and a dilemma. The authors define a problem as a situation with a straightforward solution. However difficult, expensive or time-consuming, the solution -- what needed to be done  -- is still clear and mutually agreed upon. A dilemma is a situation that has instead two or more possible conclusions, each of which presents only a partial solution or solves the identified problem by introducing a secondary set of problems. Depending on the perspective of the decision makers, these downstream issues may be equally undesirable, leading to considerable controversy and difference of opinion as to what is the best choice.

The topic of identified risk factors is a dilemma for childbearing parents, midwives and the Board. Unlike a problem with an easily identified solution, this situation presents everyone with a set of unique difficulties with no obviously superior conclusion. The mother who finds herself being swept into obstetrical interventions such as non-emergent Cesarean for a breech, twin or post-cesarean pregnancy is often disturbed to discover that our current tort system cavalierly exposes her to painful risky surgery without any acknowledgment of the less frequent but extremely serious, sometimes fatal risks of that surgery or the many well-known downstream complications. Under tort law the physician’s culpability for surgical “procedures”, such as vaginal and operative deliveries, is concluded when the “procedure” is successfully completed. One of the common sequelae of obstetrical forceps is incontinence (20% according to one study) and/or pelvic organ prolapse. The post-cesarean woman faces infertility, ectopic pregnancy, miscarriage, abnormal placentation (previa rate is 1:40). Both long and short-term sequelae are deemed to be not the “fault” of the physician performing the original surgical procedure.

This limited liability is necessary for the stability of the profession of medicine. If not, former patients could re-appear decades later, blaming all their ill-health on the doctor that took their appendix out at age 7 and claiming to recover monetary damages in court. However, this appropriate aspect of tort law is accompanied by an inappropriate application relative to the consent process. Since physicians are not liable for complications that may arise at a later date, the current convention is that practitioners are also not required to reveal any of these pathological sequelae as a part of “informed consent” process for obstetrical procedures. Obviously obstetrical interventions offer both opportunities and dilemma to patients and practitioners alike.

Value-Added versus Value Subtracted: Obstetrics has always presented itself as “Value Added” to the basic childbirth services provided by midwives. Historically speaking, midwifery is the original or “standard” form of maternity care and obstetrics is an add-on, a process that seeks to refine, improve, extend and invent medically-predicated methods to accomplish the same goal – preserving and maintaining the health of already healthy mothers and babies and restoring the unhealthy to a functional level of wellness. The increased professional fees charged for obstetrical care (in contrast to midwifery services) assume a “value-added” element to the care they provide. The tradition of medicine also includes the principle of ‘primum non nocere’ or “in the first place, do no harm”. 

For women with pregnancy complications, the obstetrical goal of “value-added” service is successfully accomplished. Obviously infant outcomes are improved and maternal suffering relieved or prevented when appropriate medical services are available to women with dysfunctional reproduction. Unfortunately for healthy women with normal pregnancies (70%), obstetrical management does not automatically add value and can even be counter-productive. This is an example of the “if it ain’t broken, don’t fix it” theory. But obstetrical care does indeed add value for the mother who needs pain medication or epidural anesthesia. And when a baby needs to be delivered by Cesarean, the “value added” aspects of obstetrical management is in fact life-saving. 

What all these circumstances have in common is that they are consensual – the mother wants and consents to each of these medical interventions. However, these same medical ministrations are not perceived to be “value-added” when the mother does not want or, medical speaking, actually does not need these interventions. Presently a patient with a frank breech baby, twins or a post-cesarean pregnancy is predestined for surgical delivery, whether she want it or not. She will be told this is for her safety or for her baby’s benefit and that there are simply no other “safe” choices. She will not be told that ACOG policies are being implemented (standard of care as defined by the obstetrical profession) whose foremost purpose is to protect her obstetrician against being sued by her.

Under current conventions of tort law, the doctor is best protected if he performs a cesarean, even when that surgery is unwanted and unwelcome by the mother. This equates to non-consensual obstetrical care. By any accounting, being forced into medically unnecessary surgery under false pretences is value subtracted. According to some legal scholars, is also a form or battery. The very well-respected British medical journal --the Lancet (May 2002), recently published a study acknowledging the problem of institutionalized violence against women in reproductive services. These authors identify the use of medical interventions, procedures and Cesarean surgery for the convenience, economic advantage or legal protection of the physician to be a form of violence against women.

However, women are not the only ones to be negatively impacted by this ACOG-originating industry standard. ACOG’s policies also mean that even doctors have no real “consent” in these matters.  Since ACOG recommends only Cesarean delivery for women with a breech baby, it becomes substandard care under tort law for an individual physician to offer vaginal breech birth, as doing so would expose the practitioner to a judgment of negligence by the courts. Many hospitals have actually adopted policies prohibiting doctors on staff from doing vaginal breech deliveries.

Consensual versus Non-Consensual Obstetrical Care: The same type of physician-centric restrictions were recently extended to post-Cesarean pregnancies, prohibiting the majority of doctor from providing care for spontaneous VBAC labors. In contrast to this directive by ACOG promoting casual use of Cesarean, many post-cesarean women have become extremely knowledgeable about the on-going dangers of Cesarean surgery and are extraordinarily committed to avoiding non-emergent operative deliveries in any future pregnancy. A significant number of these women were horrified to learn the long list of serious intra-operative, post-operative and “down-stream” complications. Often they were already upset about a possibly unnecessary primary Cesarean and felt betrayed by the medical profession for failing to give them the full story. Shocked and angry they often refuse, during subsequent pregnancies, to return to what is to them the “scene of the crime”. (See enclosed article from Sept 2002 Mothering Magazine)

However, they are presently forced to choose between a “prophylactic” cesarean delivery that they do not want or, if they are “lucky”, a prophylactically medicalized vaginal delivery in which they are confined to bed for the entire labor, tethered with IVs lines and the electronic fetal monitor. To them, this type of care is indeed the “scene of the crime” as it was these very interventions that contributed to the unwanted Cesarean in the first place. And for many families even this problematic option requires them to drive as much as a 100 miles while in labor to one of the few hospitals that will “permit” a natural VBAC labor. (see LA Times VBAC article)

As with the breech situation, this denies to childbearing family the normal range of options and results in women with identified risk factors choosing home-based midwifery care as their only hope to avoid this type of over-treatment and the far-reaching risks of major abdominal surgery. This is far from an ideal situation for all parties and one which begs for a more elegant solution – i.e., the best outcome being physiological management in an institution under the midwifery model of care. I personally am not likely to live long enough to see this rational solution implemented but hope springs eternal.  

Since the majority of Cesareans are performed on well educated, middle and upper class women with private health insurance, it is no surprise that post-cesarean mothers have done extensive research of scientific literature. Aware of the many serious and on-going complications of post cesarean pregnancies, some have published articles in various magazines on the dilemmas facing women such as themselves. They call us to look at the real but relatively rare risk of issue of uterine rupture during a normal spontaneous labor in a new light. Reputable studies identify rupture rate (including both benign dissidence and true ruptures) as between 0.6 % and 0.3 %, with perinatal demise of 5% of that small number or one out of 2000 post-cesarean vaginal births  [ObGynNews, Vol 37, May 1, 2002; Perinatal Death Risk in Term VBAC Pegged at 1:1000]. One of the most recent and extensive studies on VBAC safety (from Scotland) identified the perinatal risk for a VBAC patient as identical to a first-time mother. Post-cesarean mothers lose the “multip advantage” – the biological benefit of having successfully delivered vaginally before. But it is not lost on post-cesarean mothers that their situation, statistically-speaking, is no different than it was the first time around. Many of them are far more comfortable with and willing to accept the irreducible physiological risk than the increased rate associated with a “prophylactic” cesarean and its long-lasting consequences.

Those mothers who have experienced the intense medicalization of labor as counter-productive and realize that as individuals they are powerless to impact on the ACOG “system” (unfortunately an accurate perception), choose to labor out of the hospital and assuming they progress normally, give birth at home. They will do this with or without professional attendants. If licensed midwives aren’t allowed help her, the baby’s father, a women “friend” or some other unskilled, inexperienced and unequipped helper will be substituted. Regulations prohibiting LMs from attending a spontaneous (i.e., lowest-risk) VABC labor are counter-productive as they deprive both mother and baby of a professionally trained, skilled, experienced and equipped midwife. This is a human rights issue for the baby who needs to have his mother receive care at the highest level she will permit. In particular the unborn /newborn baby benefits by having a skilled first responder present as the normal garden variety risks to the baby are 12 times more likely to be a problem than his mother’s VBAC status.

MBC’s Relationship to Non-Consensual Obstetrical Care and Full Disclosure of Risks Associated with Obstetrical Treatments: The particular dilemma for the MBC has three aspects. The first question is the issue of non-consensual obstetrical interventions. Does the MBC think it appropriate to be part of a system that forces women to choose between non-consensual and risky medicalizations or the risky “options” – a professionally unattended labor and birth? How can one square that with the MBC’s legislative mandate to protect and provide for consumer safety? How does the BMJ/Lancet study of institutionalized violence against women in reproductive services relate to the issue of non-consensual medicalization of pregnant women with identified risk factors?

Secondly, what is the role for the Board to assure that childbearing women are actually in full possession of all pertinent facts for both up-stream and down stream complications in regard to maternity care offered by California licensed practitioners (both doctors and midwives)? LMs must, ethically speaking, reveal the full picture in regard to all identified risks associated with each particular mother’s pregnancy status as well as how community-based midwifery care differs from obstetrical services in a hospital. It is equally appropriate for obstetrical providers to reveal both long and short-term complications of all obstetrical interventions and procedures (including the consequences of non-physiological management of normal birth) so that consent or decline of treatment by maternity patients is based on a full set of facts. 

The third thorny dilemma for the MBC is the question of exactly what mathematical model to use to determine the basis for an “acceptable/unacceptable” risk for mothers and unborn or newborn babies -- some theoretical number or rate of perinatal and maternal losses which would be used to determine whether a laboring woman "qualified" for care by California licensed midwives. The legal theory of non-discrimination would require this mathematical formula to account for the risk ratio of the entire spectrum of pregnancy-related conditions and medical interventions. Midwifery risks and obstetrical risks would be analyzed side by side, on a risk-rated continuum with healthy women, spontaneous labors and normal childbirth under midwifery (physiological) management at one end and the most intensive and extensive medical and surgical interventions and Cesarean surgery under obstetrical management at the other end. 

For example, the fetal loss rate of amniocentesis is approximately 1%. In general, society recognizes the right of the childbearing family to decide to have this procedure performed and if the results indicate a possible congenital or chromosomal abnormality, to have the pregnancy terminated (a procedure with a 100% mortality rate). Should amniocentesis be the benchmark that we would use to measure identified risk factors such as vbac, which in spontaneous labors (no Pitocin, Cytotec, prostaglandins, epidural, forceps or vacuum extraction) are four times safer (1:400) than the 1% rate of fetal demise rate for amniocentesis. What ever mathematical model was used, it would be necessary to assign numerical values to the tripled rate of maternal deaths, emergency hysterectomies, and other complications of the "maternal choice” Cesarean and figure them into the perinatal loss ratio for an aggregate number.

In addition it would be necessary to acknowledge that the “physiological” management of labor is the ‘basic’ and safest management of normal birth – the “Gold Standard” of safe maternity care. Therefore, the increased risk ratio associated with elective inductions, off-label use of Cytotec and the vastly increased rate of operative deliveries associated with these and other interventions that accompany the use of continuous electronic fetal monitoring and epidural anesthesia would need to be quantified and assigned a relative rate of “excess” risk. Statistically speaking, the “identified risks” under discussion for midwives have a significantly smaller risk-ratio than the “routine” interventions that currently accompany the typical medicalized and mechanized labor under obstetrical management. 

A Better Way: May I suggest a straightforward way to transform this situation from a prickly imponderable conundrum into a simple “problem” with a reasonably straightforward solution for the Board. I would like to encourage the MBC to acknowledge that the current legislative language of the LMPA is the best definition of “appropriate” scope of practice for licensed midwives. Since 1917, the midwifery provision of the MPA has consistently defined the scope of practice of a midwife to be that of attending a “normal” birth – childbirth in essentially healthy woman in which labor occurs spontaneously, without the use of “artificial forcible or mechanical means”.

Artificial, Forcible and Mechanical Means - Pathology and the Practice of Medicine: For 85 years the use of hormonal drugs to artificially induce or accelerate labor, the use of mechanical forces such as “boggies” to dilate the cervix or fundal pressure to hasten delivery, the use surgical instruments, obstetrical forceps, vacuum extractors to cut, suck or pluck the baby out – all these are defined as “not normal” or “abnormal” parturition which is both the practice of medicine and the legal and ethical purvey of the physician. Functionally speaking, “normal” translates into a normal pregnancy at term, fetus/fetuses in a stable vertical lie, spontaneous onset and spontaneous progress of labor without evident medical complications for either mother or baby. Pregnancy-specific informed consent must accompany all activities of California licensed practitioners, and that includes special consideration of any identified risk factors and/or exceptional circumstances.

Were we to accept the historical and contemporary language of the LMPA as the appropriate definition of a midwife’s practice, we would have the opportunity to focus our finite time and energy on other important issues. For example, the Home Birth Demonstration Project from British Columbia (see Outcomes of planned home birth versus planned hospital birth after regulation of midwifery in British Columbia; 2002, Journal of Canadian Medical Association) included an expert review panel that reviewed and made recommendations relative to all home births in which there was an emergency transport, an adverse perinatal outcome or some interagency or interprofessional communications issue. While that maybe a bit ambitious, it certainly would be possible for LMs to report adverse maternal-infant outcomes and for those records to be reviewed by a standing midwifery committee and recommendations relative to improved continuing education or other measures designed to prevent similar problems.

But regardless of how the above dilemma is resolved, it would be a violation of my conscience and the ethical obligations of my religion to fail to respond to the genuine needs of mothers and unborn or newborn babies, even in the face of an identified risk factor. Whether I practice under state licensure or as a religious practitioner under the religious exemptions clause (sec 2063), I cannot abandon these ethical responsibilities. If the mother can face the small but real risk of her situation as a laboring woman, is brave enough to cope with many hours of active labor and give birth without anesthetics, then it behooves me to face the small but real risk to myself as a guardian of the well being of her and her unborn/newborn baby.While this may seem odd, one must consider what we would think of a police officer who refused to answer an emergency call because he heard gun shots or a fire fighter who declined to enter an occupied building in which someone reported smelling smoke, out of fear for their personal safety. Many emergency personnel climbed those twin towers in NY on 9/11 and did not flinch in the face of such obvious danger.

Laboring women and their babies are always safer with an educator observer with emergency response capacity providing care than they will be alone with only family members or an untrained, ill-equipped and inexperienced lay provider. As long as there are healthy women having normal labors and giving birth at home, there will be a need for community midwives. What would be best would be to equip them to do this difficult job at the very highest level possible.

I apologize for the length and complexity of this letter. Unfortunately, it is a complex topic and a complex situation. I look forward to our next meeting at the Jan 30th Midwifery Task Force meeting in LA.

Warm Regards,

Faith Gibson, LM, CPM
Executive Director, ACDM, California College of Midwives


                 Dr Gary Gitnick, MD, President, MBC
                    Dr Michael Karlan, MD, President, DOL
                    Dr Richard Fantozzi, MD Mfry Task Force
                    Salma Haider, DOL, Mfry Task Force
                    Donna Gerber, DMQ, Mfry Task Force


(1) Exploration of Specific Identified Risk Factors in Healthy Women – Breech, VBAC

(2) A Table of Contents for a master copy of three-ring notebook for the MBC staff (Sacramento office). It contains articles on the LMPA/SB 1479 amendment and Judge Roman’s Decision, examples of Standards of Midwifery Care for nurse midwives, MANA and New Zealand, the nature and advantage of physiological (i.e. midwifery) management and the routine practices and interventions of obstetrical practice, especially “elective” Cesareans, post-op complications and post-cesarean pregnancies issues. Sources are various peer-reviewed studies and other professional sources such as Ob.Gyn.News and the lay press.