February 3, 1998

ACLU - California
1663 Mission street, #460
San Francisco, CA 94103
Complaint line 415/621-2488
Main # 415/621-2893

Att: Tuesday Volunteer

RE: Discriminatory and illegal imposition of regulations by the California Office of Vital Records which has adopted an adversarial role in regard to the births registration for babies born at home and the professionals (both MDs and midwives) who provided homebirth services.

The OVR is circulating a draft proposal dated 1/9/98 which would create an unduly burdensome and redundant process of documentation required of parents and physicians in carrying out their statutory duty to register the births occurring in a domiciliary setting (home or birth center), and eliminating the official identification by the OVS of the professional midwife as the "principal attendant" for birth registration of babies born at home. Certified nurse midwives and licensed professional midwives who provided prenatal care during the course of the pregnancy and attended the birth in their professionally-recognized capacity have been reassigned to the status of a "witness", a role equally able to be fulfilled by a minor child signing with an X. This would mean that planned domicilairy births attended by state-licensed professional midwives would be statistically encoded for both state and national data banks as "Unattended". Physicians are being required to drive into each county office to sign the birth certificate even though the law identifies the parents as equally authorized to secure the signature of the physician.

These proposed changes do not have any direct statutory authority and have occurred without public knowledge, public hearings, or any input from practitioners of midwifery (MDs CNMs, CPM’s & LMs) or other affected citizens. The OVR cites its general legislative authorization to conduct the business of the agency as an absolute authority to impose these guidelines as binding on the county clerks, parents and practitioners. I and other midwives have been attempting to resolve these problems since 1995 without success.

The current law, as it pertains to babies born at home, reads:

102415. Births Occurring Outside of Hospitals; Registration by Physicians or Parent. For live births which occur outside of a hospital, the physician in attendance at the birth; or in the absence of a physician, either one of the parents shall be responsible for entering the information on the certificate, securing the required signatures, and for registering the certificate with the local registrar [Added by Stats, 1957, CH. 363] (passed again unchanged in 1995)

In hospitals, birth registration is done by an unlicensed clerk in the employ of the hospital, the birth registration form is signed by doctor while it is still blank and later typed up by the clerk and mailed via the US Post Office to the local registrar. No documentation beyond what is in the hospital chart is required of either the parents, physician, professional midwife or other "principle attendant". Statutes dealing with registration of birth occurring within a licensed medical facility acknowledge physicians, nurse midwives, interns, residents and ‘others’ as the "principal attendant". The "principal attendant" is not required be licensed in order to sign the birth certificate. However, if the principal attendant has a California license, the number is noted on the certificate.

According to the Handbook For Local Registrars of Births and Deaths as published in 1998 by the California Office of State Registrar, all the various aspects of data gathered during the registration of births is "vitally" important statistical information. For instance, in regard to the place of birth it states: " This information enables the development of statistics on in-hospital and out-of-hospital births. It may be used to compare the health of children based on the place of birth. It is also used in calculating differences in infant mortality by place of birth." While not using the categories of "attended" (by a professional) versus "unattended" as an example in the handbook, the same principles would apply. Gathering of accurate health and demographic information is the original purpose of the registration of "Vital Statistics". Information complied at the state level is computerized and then sent to a national data bank so the importance of accuracy extends beyond our jurisdiction or time in history."

Antecedent Info: The Vital Statistics Registration System was established in California in 1905. The birth registration law passed in 1915 required that both physicians and midwives "or persons acting as the midwife" register all live births. In 1917 a midwifery certification statute was passed, which licensed several hundred midwives. In1949 the application for midwifery certification was repealed at the request of the state medical board. Approximately 50 certified midwives continued to practice under the authority of the original statute. In 1957 the earlier birth registration law was replaced with a statute that eliminated any reference to the midwife as an attendant at birth. At this time there were still state-certified midwives legally attending births. It is interesting to note a reference in a 1911 publication of the Boston Medical and Surgical Journal in an article entitled "A Review of the Midwife Situation" -- a treatise on how to suppress and abolish the practice of midwives -- which makes the following statement by its authors, Drs. Emmons and Hunington:

" We feel that the most important change should be in the laws governing the registration of births. The word "midwife" as it occurs should be at once erased from the statute books"

It is instructive to re-read the language of the 1957 statute (re-up’d in 1995) in light of the above quotation:

Births Occurring Outside of Hospitals; Registration by Physicians or Parent. For live births which occur outside of a hospital, the physician in attendance at the birth; or in the absence of a physician, either one of the parents shall be responsible for entering the information on the certificate, securing the required signatures, and for registering the certificate with the local registrar

Contemporary Background: For decades physicians and midwives who provide home-based birth services have been personally doing the paper work to register births we attend. To do this we filled out a state-issued registration form which is sent to us by our county registrar. On this form is recorded the name of the baby and pertinent information about the parents (age, birth dates, residence, education, etc.), the pregnancy and relevant medical history, course of labor and delivery, the date and place of the birth, the gender and weight of the baby, notation of any complications birth and more recently, the social security number of the parents, an additional form with informaiton about genetic screening (PKU, etc) and a signed statement of paternity if the parents were not married at the time of the birth. Historically, birth registration documents have been a form of affidavit with notice of statutory penalties. Misuse of birth registration forms -- false information, filling fraudulently -- was identified, on the face of the registration form, as a crime punishable by 6 months in jail and a $500 fine. If a birth attendant were to falsify birth registrations such as filing fraudulent registrations, she would no doubt be held accountable in criminal court, fined, possibly even jailed. In addition she would face the revocation of her professional license. The moral and ethical obligation to truthfully document events and the possibility of criminal penalties are very significant motivators to physicians and midwives and we all take this duty to accurately register births very seriously. I have records of more than 100 birth registrations filed by me over the last decade -- all without incident.

The mother is usually the "informant" regarding such things as her date of birth, where she was born, educational level of herself and her husband, etc. After the registration form is completed the mother reads it over to be sure it is accurate and signs the birth certificate as "Informant/Mother". The midwife then signs the certificate as the "Birth Attendant". A copy is made for the baby’s chart and the original mailed to the county registrar’s office. The registration form is then minutely inspected by the clerk assigned to homebirth registration for accuracy and technical conformation with state guidelines (must be in black ink, can’t use white-out, no erasures or strike-overs, must use correct codes for medical conditions, all dates must match, etc.). If any errors are found the form is returned to us with red pencil marks noting the mistakes and we must fill out an entirely new form and have it signed all over again by one of the parents. I personally have had reg. forms returned more than once because they didn’t pass inspection by the clerk.

After the form is determined to be technically accurate it is them scrutinized for authenticity. The name of the midwife or physician is checked to see that it is on the list of homebirth providers for the county and her signature referenced against a signature card and record of the practitioner’s professional credentials which are on file in the registrar’s office. After acceptance by the Registrar is the first half registration form only (confidential medical data does not appear on certificate) is copied on an actual certificate of pink paper with a dark blue filigree pattern entitled "Certification of Vital Regards /County of Santa Clara (etc.) and including the official seal of that county registrar. At that point (and not before!) it becomes an official "birth certificate".

Trigger Incident to Current Situation

Some time in 1994 or 95, an incident occurred in Brownsville, Texas which involved the selling of birth certificates to illegal aliens who used them to fraudulently apply for welfare benefits in the US. This crime was purported to have involved two lay midwives. Texas does not regulate midwifery as a profession and so the type of "license" held by these midwives was actually a form of self "registration" and payment of a fee for an occupational license. Also the birth registration process currently employed in California is quite different.

None-the-less, this event triggered a backlash on the part of the California OVR in regard to birth certificates for babies born at home. The state OVR informed county registrars that henceforth the physician or midwife for all out-of-hospital births must come in person to the county registrar's office with each mother and baby in order to register the birth. In addition there was a long list of documentation to be required including such things as a picture of the mother while pregnant, record of a pregnancy test, a letter from a doctor seen during the pregnancy and another from a pediatrician who has seen the baby after birth, rent receipts/escrow deed for the month the baby was born, statements from other "witnesses", and of course, the presence of the baby at the appointment.

It is not uncommon for lay persons to think that requiring the mother and/or baby to be seen by a doctor would afford irrefutable proof of the circumstances of the birth. However, that is an erroneous assumption. Medical personnel would have to do a vaginal exam within 72 hours of a spontaneous delivery to document that the woman had given birth and that would still not guarantee that the baby being registered belonged to that particular mother or that the birth occurred in the state of California. Only DNA testing can pair the mother and the baby and not even DNA can date the birth or identify where the baby was born. Only the sworn testimony of the "principle attendant" who provided pregnancy care and was present at the birth can guarantee the accuracy of this information. To ignore this direct evidence while amassing indirect documentation is either poor policy or harassment.

Needless to say, these new policies had a dozen different problems associated with them. For instance, many families that choose midwifery care do not need to see a doctor during the pregnancy unless there is a problem or complication and only take their babies to a pediatrician when they are sick. If the pregnancy was normal and the baby stayed well, they did not have any physician-generated medical records. Community midwives, by scope of practice, provide care to healthy mothers enjoying normal pregnancies, so this category of "no medical complications" (thus no medical records) is the norm for our client population. Pregnancy tests now are purchased from the drug store so parents don’t have a laboratory slip reporting a positive test. Often the only persons present at quick multip births were the mother, the father and the midwife so additional "witnesses" were a common problem. And most unsettling of all was that families felt like they were being slimed by these requirements which far exceed the documentation for getting a passport or social security card. They also do not apply to birth registration for hospital deliveries. These new policies appeared to be a harassment of both parents and domicilairy practitioners specific to home births.

Client families were deeply disturbed that a department of the state government assumed that because they gave birth at home they were dishonest. I have had two homebirth families that are active on the Central Committee of the Republican Party for San Mateo County so obviously the choice of an alternative birth setting does not mean that families are hippies, druggies or anti-establishment types. In fact, they tend to be family-oriented Christian fundamentalists who are home-schooling. Even if one accepts the idea that identification of the parents (as separate from the sworn testimony of the principle attendant) is necessary as a security precaution, certainly a California driver's license number in addition to the SS# of both parents should be amply verification in and of themselves.

These excessively complicated rituals only applied to registration of newborns. If the parents choose to wait until the child is a year or more old and file a "delayed Registration of Birth", none of this elaborate documentation process surrounding the pregnancy, birth and medical records for the baby is required. Applicants for "delayed registration" need only three witnesses to sign an affidavit (which can be the mother, the father and a child, even if witnesses don’t speak English or the child is so young that he/she must sign with an "X") in addition to some documentation of the child’s life such as baptismal records, nursery school attendance, immunization record, etc. It’s nuts to force parents to jump through a complicated series of hoops to register a live birth while 12 months later this level of security is no longer applied. A bit like installing a burglar alarm, triple padlocks and a surveillance camera on the front door while leaving the back door unlatched, unwatched and unwired.

The midwifery community was also stunned at this excessively inconvenient policy which, despite its draconian nature, actually did not function for the stated purpose of "security". None of the documents listed, which were all provided by strangers far distant in time and place from the labor or birth, provided any absolute guarantee against fraud. For instance, the same baby could be used by any number of different mothers or a mother-baby dyad could register the same birth in different counties under different names, assuming the individuals were willing to falsify documents such as rent receipts. Not a single item of this "documentation" was superior to the affidavit (under penalty of perjury, a 6 month jail sentence and $500 fine!) of those with direct "knowledge of the facts" -- that is the professional midwife or physician who personally provided prenatal care, attended the labor in the mother’s own home, delivered the baby (and the placenta!) and continued to see the mother and baby for 6 weeks postpartum. In many instances midwives have know the parents for years and years, perhaps having attended the wedding and delivered several children for the family.

Midwifery practitioners (both physicians and midwives) were also in agreement that having to appear in person at the county office was an unnecessary harassment and discrimination against homebirth practitioners. The same goal could be accomplished via the mail or having the parents hand-carry the certificate to the practitioner for signature. For instance, many of us attend births in 6 different counties. The travel time during business hours, if registering 3-4 births a month could well be in excess of 10 hours a month (120 hours a year or equivalent of three 40 hour weeks) in addition to the time spent interviewing the mother and filling out the affidavit. And god help us if someone made a mistake and it had to be done all over again.

Our objections to the OVS about the requirement to appear in person at the county office to sign the birth certificate was met with the suggestion by them that the father sign in the place of the midwife as the "birth attendant". According to OVR employ Pat Andrews all that was necessary for the father to be legally identified as the "attendant" was that he be present, as that qualified him as having "attended" the birth (in the generic sense). We objected as this would falsify the statistics (making it appear to be an "unattended birth"). Certainly from the standpoint of public health statistics, the distinction between a labor and delivery attended by a trained professional and that of a father "catching" his baby is one of the most elemental and important types of "vital" statistics. Ms. Andrews said the state was not interested in "our statistics", that they were too small to matter.

Since the OVS and local registrars have routinely prevented unlicensed midwives from signing the birth certificate, it is true that the numbers are very small -- less than 1%. However, a contemporary midwifery licensure law was passed in 1993 and these same midwives are now licensed which will significantly increase these stats. But regardless of the raw numbers, the outcomes of these births is valuable public health information and should be collected with as much accuracy as any other data. On one occasion, a new mother went in person to the local registrar with the birth registration form filled out and signed by me as the midwife only to have the clerk tear it up and type up a new one without my name and insist that the father sign as the birth attendant. Only my insistence that this was fraudulent and that I would hire a lawyer stopped this practice from continuing . (See accompanying letter from Chris and Gary Franks regarding birth registration of their 3rd child).

Many letters were written by myself (copies attached) and others to the various county registrars and to the state OVS in an attempt to resolve this situation without having to seek new legislation or go to court to get an injunction. We tried to get the director of the OVS (Mr. Palmeri) to meet with the midwives statewide. We pointed out that the statute involved dose not itself mandate any of these "procedures" put forth by the OVS. We suggested a variety of simple procedures that would protect against fraud without treating the childbearing family as if it were dishonest and without unduly harassing the practitioner.

For example, the birth registration forms that we get from the county office could be numbered (such as an inventory control #) and be accounted for in a manner that would make the midwife or physician personally responsible for a set of uniquely numbered certificates (roughly equal to the number of births attended each year). This system is used to keep track of narcotics and has been established to provide good security. It is also one that licensed healthcare providers are already familiar with it.

In an attempt to reach an acceptable compromise with the OVR midwifery practitioners around the state offered to come in person to each county registrar’s office in the geographical area. We would provide picture ID and a permanent copy of our midwifery credentials (state licensure or national certification), then sign, in the presence of the registrar, a signature card. This card would be kept on file in the county office and matched with our signature on any registration forms submitted in our name. We also offered to use registered or certified mail to submit the finished documents as an added security measure.

Since the law regarding the duties of the county registrar obliges her to determine the veracity of all facts and documents "to her satisfaction", we felt that it was legally up to the county registrar to decide the policy on the local level. Many registrars agreed with us and at least in the greater Bay area, every county instituted some form of "registration" of the midwives in their district by keeping a file with copies of our credentials and a sample of our signature. We continued to register births to the satisfaction of all parties. Thus for the last year or so we have again enjoyed a workable system.

Current Situation:

The OVS recently (Jan 9, 1998) issued a draft proposal for another set of "Out of Hospital Birth Registration" guidelines -- as in the past, proposed changes were drawn up without the participation (or even knowledge) of professional practitioners or parents. This is particularly troubling in light of the many letters and calls and requests for a meeting with the staff of the OVR over the last 3 years. Why were those directly affected never notified -- a particularly easy thing for an agency such as the OVR which has the names and mailing addresses of all domiciliary midwives and physicians on file?

This new proposal informs the county registrars that they can no longer verify homebirth registrations as they have been doing but must instead follow the new guidelines of the OVS. I quote the letter outlining these "minimum requirements" for registration of out of hospital birth: "Local Registration Districts may supplement but not replace these procedures with additional requirements needed to verify the circumstances of the birth. If the LRD establishes additional routine procedures other than these, prior written approval from the State Registrar is necessary." It cites no statutory authority for this statement.

This latest proposal is the most draconian (and I believe illegal) of them all. It employs a complicated system of documentation which discriminates against home birth registration by midwives and constitutes harassment of the parents. In addition to creating a parent/practitioner unfriendly mechanism which is monumentally inconvenient (in some cases, an insurmountable barrier), both parents and professional practitioners (MDs and midwives) are treated as low-life scum. This is despite the fact that "informants" (witness or professional birth attendant) must sign an affidavit that cites criminal penalties of perjury for false statements.

The birth registration form used for the past decade is to no longer be made available to physicians and midwives by the local registrar. It has been replaced with a "Worksheet" which collects the identical information as before and in addition, contains the following "Affidavit":

I solemnly swear or affirm that the information stated above is true and correct to the best of my knowledge and belief. I certify that the child named herein was born alive to the stated mother at the place, date and time shown above.

This form was completed with the understanding that the facts so stated herein afford a full, complete and truthful representation of the facts and what my testimony shall be should I be asked or directed to testify to the facts herein in a court of law. I realize that any false facts/information made herein could subject me to the risk of criminal liability, including but not limited to prosecution for perjury

In addition, the worksheet requires the names, addresses and signatures of the mother, the witness, the practitioner and the county clerk. It also contains an "inventory control number".

The new proposal has three categories --- planned physician attended birth, planned professional midwife attended and unattended births (either planned or unplanned). The OVR created three "information packets" each with its own instructional letter to be given to the parents by either the birth attendant or the county registrar. Packet A is for physician-attended birth, B for midwife-attended birth and C for unattended births or emergency deliveries attended by fire or paramedics or in the ambulance on route to the hospital. Letters B and C (instructions for midwife-attended and unattended birth registration) are actually identical -- both begin "Dear Parent" and contain the same information.

The simplest of the three, for both parents and birth attendant, is for physician-attended births. It only requires an affidavit from the doctor. Either one of the parents then bring the affidavit to the local registrar’s office in person. However, even this "simpler" process mandates that the physician come in person to the county office to sign the birth certificate within 10 days of the filing. Nothing in the out-of-hospital birth registration statute prohibits utilizing the US mail to transport birth certificates nor does any H&S statute require the physician to come in person to sign the certificate.

At the polar opposite in simplicity is the "unattended homebirth". This requires elaborate documentation for every aspect of the pregnancy and birth, the residency of the parents, escrow deed if the parents own their own home, the sworn statements of witnesses and others, and in the event of an emergency birth, official records from the paramedics and a report of the 911 call. And of course, the presence of the baby at the appointment and government-issued picture ID for each person is required.

The last of the three is the process for registering certified nurse or licensed midwife-attended births. Since physicians and midwives are both licensed by the state to provide identical care in a domiciliary setting, one would logically assume that the birth registration process would be the same for each of these categories of licensed professionals. However, it is just the opposite. The proposed new guidelines impose a level of bureaucratic "redundancy " that represents, in my opinion, a harassment of both the parents and the midwife. The family who employs the services of a certified nurse or licensed midwife for home-based birth services is penalized for this choice as the OVR does not officially recognize state credentialed midwife as a "principle attendant". The OVR has also chosen to interpret the absence of the word "midwife" in Sec. 102415 as meaning that their agency is legally PREVENTED from acknowledging the participation of midwives in the birth registration process (although it violates its own principle in regard to the midwife-version of the affidavit). In addition, the OVR also interpreted the OOH statute as preventing them from even including a category of midwife-attended homebirths in the statistics that it compiles for the state and federal government. Ms.Andrews informed me a phone conversation in August of 1995 that all OOH midwife-attended births were statistically categorized as "Planned, Unattended" births.

These proposed guidelines completely ignore the midwife and require the parents, independent of the affidavit already provided by the midwife, to provide identical documentation as listed for an UNATTENDED birth -- i.e., both parents must appear in person with a government-issued picture ID and the baby must be brought in for the appointment, they must have medical verification of pregnancy from a doctor or other licensed healthcare professional (in an oxymoronic move, it accepts a letter from the nurse or licensed midwife herself as fulfilling this requirement!), two documents proving where the mother lives (one dated before the birth and one after), statements of additional witnesses to the birth must be provided as well as a hand written, notarized letter from someone "not related to the mother or living with her" stating that this person knows the mother was pregnant, that the child was born, the date of the birth and the address where the child was born.

If for any reason the baby is born somewhere other than in the legal residence of its parents (for instance people who live in very rural locations and plan to have the baby at the home of a relative who lives in town, etc.,) these guidelines would have NO provisions which would permit that newborn ever to be registered by the county.

According to these newly proposed guideline, the professional midwife is "permitted" to personally accompany the parents to the county registrar’s office and sign the birth registration form as a "witness". However she is not permitted to sign as a healthcare professional under the circumstance described for physicians.

This differs from the rules laid out for physicians in three specific aspects. When the affidavit is signed by a doctor, the parents do not have to provide any further "proof" of the stated facts nor does the baby need to be brought to the appointment. The mother need only come to the registrar’s office with a picture ID and sign the completed registration. If the parents want a copy they pay the $18 fee and an official copy will be mailed to them later by the registrar. The physician is then instructed to appear in person within the following 10 days to sign as the birth attendant . Also, physicians are merely required to give the number of their medical license on the affidavit (the registrar is provided with a phone number to verify the physician’s license with the MBC if she so chooses). However, the midwife must bring in a copy of her professional license in for verification.

It seem to me that these glaring disparities should be examined in light of the legal authorities routinely exercised by licensed healthcare practitioners in other domains of their professional duties such as signing for or prescribing class two controlled drugs, administering controlled substances, authorizing disability payments, rendering legal diagnoses for insurance purposes, and in the case of MDs, legally determining the cause of death. Under these proposed guidelines, one would require considerably less documentation to file a death certificate than the registration of live birth. If this "guideline" is permitted to stand, it would impose an extreme hardship on the parents and midwife and still not guarantee against fraud. And it is clearly discriminatory against professional midwives, treating them as a lower class of informant than physicians.

The goal of the Department of Vital Statistics should logically be to maximize the registering of births (with 100% being the benchmark) and to do whatever necessary to assure 100% accuracy of the information recorded on the certificate, including the presence and status of the birth attendant (professional, med. student, EMT, family member, etc.). This information is just as crucial to data collection as the weight of the baby, length of the pregnancy or the complications of the labor or birth. Registration of a planned and attended homebirth should be signed by the person who provided care as the identified principal attendant, and should not give the family the option of having a relative sign the certificate instead of the midwife or doctor. According to sound legal doctrine, having fathers sign as "principal attendant" is falsifying information and should be prohibited.

Attempts to Resolve: In the past our attempts to dialogue with the office of Vital Statistics have gone nowhere. During one private meeting with two of the midwives, an OVR staff member told them that if we attempted to remedy this by seeking legislation, the OVS would itself seek legislation mandates that the statute to be amended to require the name of the midwife’s "supervising physician". Since it is virtually impossible to get physicians to enter into formal supervisory relationships with community-based midwives, this was a non-too-subtle form of intimidation that, for the most part, worked to the advantage of the OVR. Instead of trying to get this problem fixed at the state level by instigating a legislative hearing or introduction of a bill to correct the wording, midwives instead tried to bargain with each county registrar. This worked as a stop-gap technique but is useless under these new circumstances.

While the criminal acts that occurred in Texas three years ago are reprehensible, it is equally reprehensible (and illogical) to treat all homebirth attendants and in particular professional midwives and parents of babies born at home as criminals. Every type of professional has at one time or another been involved in crimes - doctors, lawyers, teachers, government officials, etc., and yet we do not create official government mechanisms that automatically assume dishonest intent on each of those classifications of occupation -- except, it seems, for professional midwives.

One of the profound questions brought up by this is whether or not we have as citizens the right to expect our governmental agencies to assist us in our efforts to carry out our citizenship duties. It goes without saying that the common good is promoted when we prevent fraud. But the common good is also promoted by the gathering of accurate statistics about the facts of live birth -- place and status of the caregiver. Having the father sign the certificate as the "attendant" or the midwife sign as a "witness" are both falsifications of facts. The common good is also promoted when state agencies assist us in fulfilling our legal and/or ethical obligation to register births and when we treat with respect the choices of even small segments of our society.

And last but not least is the issue of regulatory authority -- or in this case, the abuse of it. It appears that the OVR does not have to bother with the little niceties of democratic process as do all other agencies of state government. Other regulatory agencies have to entertain public dialogues and hold public hearings and submit a rule making file for each proposed regulation for approval to the Office of Administrative Law before it can be implemented by that agency.

Quasi-legislative Powers -- Since governmental agencies have "quasi-legislative powers" there is a rather stringent method imposed on them whenever they wish to exercise regulatory powers via promulgation of specific regulations. According to this orderly process, the Office of Vital Records would have to go through the same steps that are imposed on every other California agency before they could write regulations concerning the registration of out-of-hospital births. This requires that public notices be mailed out 45 days in advance of any public hearing. The purpose of such hearing is so that any citizen may give oral and/or written testimony. The agency must maintain a "rule-making file" which contains all pertinent data -- factual information, written transcripts of all testimony, technical, theoretical and empirical studies or reports, etc. The file of the rulemaking proceedings "shall be made available by the agency to the public and the courts in connection with the review of the regulation".

In addition, the regulations recommended by the agency along with the rulemaking file from the public hearing must be submitted to the Office of Administrative Law (OAL) for review. They cannot be implemented by the agency unless they are determined to comply with six legal review standards and subsequently passed by OAL . These 6 standards are:

1) Necessity Has the agency demonstrated for the record substantial evidence of the need for each part of the regulation?

2) Authority Has the Legislature delegated to the agency the power to adopt this regulation?

3) Consistency Does the regulation conflict with other regulation or statutes?

4) Clarity Can the regulation easily be understood by those directly affected by it?

5) Nonduplication Does this regulation duplicate any other regulation or statute?

6) Reference Which statute does the regulation implement, interpret or make specific?

In addition to these legal standards is the "Consideration of Alternatives".

"The division must determine that no alternative which it considered would either be more effective than or as effective as or less burdensome on affected private persons than the proposal described in the Notice"

"Any interested person may present statements or arguments orally or in writing relevant to the above determination at the above mentioned hearings".

In my opinion, these guideline/regulations fail to meet any of the 6 standards. The first legal review standard --"necessity" -- has never been established. The OVR has not documented that the current system is not working or that another one would be better. They also do not have any direct statutory "authority" for this proposal. Each of the other standards -- consistency, clarity, nonduplication and reference -- are likewise highly suspect. And last but definitely NOT least -- what about "alternatives" that would be either be "more effective than or as effective as or less burdensome on affected private persons than those which were implemented"? Those are abundant but have so far been rejected by the agency.

In Conclusion:

What we are asking for is rather simple. First and foremost, we want the OVR to treat us, both as parents and professional birth attendants, with the respect due to law abiding citizens. We really are both on the same side and an adversarial relationship is unacceptable. We are neither residents of a penal institution or convicted felons out on probation. It is inappropriate for pregnant women under the care of licensed healthcare professionals to be required to submit urine specimens to expensive commercial labs in order to acquire "politically correct" types of documentation of their pregnancy. It is repugnant and medically ill advised for new mothers to be submitting to pelvic exams in order to get a note from a doctor saying they had a baby. (The only other circumstance in which a woman is required to submit to a pelvic exam for public purposes is in the event of a rape.) It is equally in inappropriate for parents to be paying for pediatric visits based solely on the need for documentation from a medical careprovider that satisfies the OVR guideline.

Next we want the OVR to discuss this very public policy in a public forum -- including parents and practitioners -- that permits a dialogue and which takes all presented information into consideration. Frankly, we are convinced that the agency is actually passing regulations and that a regulatory hearing with approval from OAL is warranted.

And we want the discrimination and harassment removed from the system. For parents this means that choosing a home birth should not expose them to onerous levels of documentation. For physicians this means not having to appear in person for the registration of each birth. And for professional midwives, this means that there should be no difference between the procedures established for physician registration and those for certified nurse and licensed midwives. We are all licensed health care providers with a legal scope of practice that includes providing pregnancy and birth services. In fact, non-nurse midwives are licensed by the very same agency as physicians -- the Medical Board of California. The statute cited does not contain any language compelling the OVR to exclude midwives nor does it force physicians to appear in person at the county office. Quite the opposite - it authorizes both parents and physicians to obtain a registration form, enter the necessary information and collect necessary signatures on the form and then to file it with the county registrar. The general law as well as the specific statute merely establishes the legal responsibility for births to be registered by the parties involved and it does so without any encumbrances. For example, it does not preclude using the US mails and indeed, this is a common practice for the agency in the filing of birth registration forms between hospitals and county offices, the county and state offices and mailing completed certificates to the parents.

Even without legislative amendment of the current statute, which does not specifically identify the midwife (nor does it list paramedic, police offers or firemen), a professional midwife is still the principal attendant and for the sake of accuracy needs to be noted on the certificate (as would a paramedic, etc.). As for the midwife’s responsibility to file (which is not currently immortalized in black letter law but has both an historical precedent and a contemporary custom), the agency can as easily solicit the participation of the midwife in securing the cooperation of the parents and assisting them to fulfill their statutory duty. The OVR frequently promotes itself as very concerned with following the letter of the law but I must note here that the 10 day filing requirement in law is not only ignored but has been translated in the introductory letter as "up to one year". The same may be said about paramedic-attended births -- these are not named in the statute but the agency does not require the personal presence of the EMTs or police officers, only a copy of the official report. If the OVR can exercise such discretion in regard to these items, then clearly it could figure out a way to work with professional midwives to the common benefit of all parties.

In closing I want to assure the reader that I am not particularly interested in litigation -- my preference is to have all our ducks in a row and then be able to negotiate a mutually acceptable resolution. What I need from the ACLU is some leverage to break into the system -- either directly or by being able to direct me to someone who is more appropriate in my quest to get the attention of the OVR, to facilitate their interest in negotiating with us in relative good faith. I have thought of calling a press conference but I’d prefer to let the future possibly of these political tactics be sufficient for the OVR to see that it was in their interest to be as interested in helping us as they have, heretofore, been committed to harming us. Truly, we are both on the same side -- we are all equally committed to the truthful documentation of events.

The simple and unvarnished truth about home-based midwifery is that the mother has to get the baby out before she can get a birth registration form signed by me or any other midwife. I don’t file anything unless the mother pushes the baby out at home and does so without any complications that would bring her into the medical system (which would make the hospital the principal agent for purposes of birth registration). And without the equal participation of the local registrar in identifying me as a "registered" homebirth practitioner and verifying the authenticity of my signature, the family does not get a birth certificate from the state. Now that’s a secure system that is already working just fine! The proposed guidelines are a solution looking for a problem where none exists.

Frankly I am considering boxing up the placenta and sending it in with my birth registration forms as "proof" of pregnancy in place of all those messy documents. Please advise.

Rev. faith gibson, LM, CPM

ps. If anyone studying this issue needs access to the actual draft document by the OVR pertinent excerpts are available on our web site as a hidden document. <www.goodnewsnet.org> go to very bottom of home page and click on small picture of "Tweetie Bird". The cover letter, the overview, the instructional letters and directions for Packets A, B, and C are all hot-linked together. You may also contact me via email from the ACDM web site

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