On 2 Oct 1997, Patrice Bobier sent the following message to the midwwives  list:

> Interesting and fair article in this month's GOVERNING  magazine on "The Battle Over Home Delivery", by Karen  Ann Coburn.

Mentions Roberta Devers-Scott and Jane  Dawkins' legal battles, Florida's favorable laws for midwives,  NY's overly restrictive new law, WHO and mortality rates of  countries that use midwives, the NARM exam and MANA.  Just about everywhere in the article that they mention  "illegality of lay midwifery" (I hate that label), they mention established health professions being the loudest objectors to  licensing or other changes in legality. This magazine goes out to all state legislators in the nation.

News du jour

Karen Ann Coburn Governing Magazine, September 1997.
Copyright 1997, Congressional Quarterly, Inc.

Lay midwives have been around forever. But states are just now deciding whether they should be legal.

By Karen Ann Coburn

Late in November 1993, in rural DeKalb County, Indiana, Jane Dawkins was doing something she had done hundreds of times before: helping a woman give birth at home. This time, however, there were complications, and although the mother was taken to the hospital for an emergency Caesarean section, the baby was stillborn.

In the aftermath, Dawkins was charged with the felony of practicing midwifery without a license. But whether her actions contributed to the tragedy or she was merely a convenient scapegoat will probably never be resolved. The Indiana law regulating midwifery was so unclear that last January the case was dismissed. To some, that action vindicated Dawkins. To others, it demonstrated the necessity of explicit laws to regulate these alternative practitioners.

At present, 27 states have yet to take a stand on the issue of lay or "direct-entry" midwives, as they prefer to be called. (The name refers to the fact that they enter their profession directly after completing an apprenticeship but usually have no formal nursing education.) In those states that have considered the issue, the resulting laws run the gamut from those that criminalize the practice to those that not only license lay midwives but also provide Medicaid reimbursement.

This hodgepodge of laws says as much about the politics of health care as it does about the status of lay midwives. Clearly, ongoing legislative efforts to reform health policy and control costs, along with the public's growing acceptance of alternative health care--from chiropractic to Chinese herbal medicine--mean an increasing number of lawmakers will be forced to grapple with this emotionally charged issue. And as cases such as Dawkins' percolate through the legal system, some are having to revisit the subject and revise laws that were not very carefully crafted in the first place.

During the past decade, the question of how to regulate lay midwives has ridden into statehouses largely on bills directed at the medical professions. Last year, a firestorm erupted in Ohio as lawmakers considered a bill clarifying the scope of practice for highly trained nurses. The State Medical Board of Ohio latched on to the measure in an attempt to end what it perceived as a public health threat, citing a handful of formal complaints about lay midwives it had received over the past decade. At the board's behest, a clause was inserted putting all midwives under the purview of the Ohio Board of Nursing. In effect, it would have prohibited the practice of midwifery by anyone without a nursing license.

Fearing that the bill would put them out of business, lay midwives in the state quickly organized a rally and letter-writing campaign. Even the reclusive Amish community became involved. "Those folks were quick to send us a lot of handwritten notes," recalls state Senator Merle Grace Kearns, the bill's sponsor. Eventually, with the grassroots effort having met with the tacit support of Ohio's Certified Nurse Midwives, the original language was pulled. In its place, the law established a study council--composed of legislators, consumers, medical professionals and midwives--to recommend by the end of this year if and how Ohio should regulate lay midwives.

* * *

At the heart of the matter is whether or not lay midwives are qualified to assist in births. Today, the term midwife is most often associated in the public's mind with nurse midwives, who are allowed to practice in every state and are regulated through nursing or medical boards. Largely due to insurance constraints, they rarely assist in home births. According to the American College of Nurse Midwives, only 3 percent of the approximately 6,000 nurse midwives deliver babies at home. The remainder work in hospitals and birthing centers. Certified nurse midwives are tethered to physicians by consulting agreements and can admit patients to the hospital when complications occur.

Lay midwives, on the other hand, do not have hospital privileges and deliver babies in homes or birthing centers. The Midwives Alliance of North America, one of four national advocacy groups that have sprouted since the late 1980s, says there are nearly 4,000 such midwives in the country, assisting in between 1 and 5 percent of births. Both types of midwives are trained to work only with healthy women experiencing normal pregnancies.

Advocates cite statistics, mostly from the World Health Organization, supporting the safety and cost effectiveness of lay midwives. In European countries, where as many as 75 percent of pregnant women use lay midwives, infant and maternal mortality rates are far lower than in the United States, which ranks 22nd and 14th respectively. In addition, out-of-hospital births cost a fraction of the average $6,400 charged in U.S. hospitals.

Nevertheless, the American College of Obstetricians and Gynecologists unequivocally opposes home births and says less than than three years of formal training is inadequate for midwives. Dr. John Barton, chairman of the Department of Obstetrics at Rush University in Chicago, notes that "the unexpected can happen, even in a normally expected delivery," and
says it is negligent to deny a newborn the technology and trained medical staff that a hospital offers. Proponents of home birth, he adds, "are a very vocal minority and are expressing a selfish response" by placing their own desire for comfort over the baby's possible need for medical care. State medical associations, too, actively oppose the legalization of lay midwives. "Are we overtraining the obstetricians to deliver babies," asks Tom Dilling of the State Medical Board of Ohio, "or is someone else being undertrained?"

Nine states and the District of Columbia have decided that lay midwives do, indeed, lack sufficient training and have outlawed the practice through statute or judicial interpretation. By placing all midwifery under the scope of an established profession (as Ohio attempted to do), these states can prosecute lay midwives for practicing either medicine or nursing without a license. The Midwives Alliance reports that more than 150 lay midwives have been charged with misdemeanor or felony offenses for attending births. Doctors in Illinois are currently working to classify midwifery as a procedure for which a medical license is required.

Fourteen states have tried another approach--creating licensing programs specifically for midwives--but with different goals and outcomes. In some places, the intent of licensing laws is to help consumers choose qualified practitioners by establishing minimum standards; in others, it is to discourage the entry of additional practitioners into the field.

Many consider New York State, where lay and nurse midwives share the same licensing requirements and regulatory board, to have some of the toughest licensing requirements. Since New York's Professional Midwifery Practice Act went into effect in 1994, only one lay midwife has been licensed. More than a dozen have been investigated by the Office of Professional Discipline and one, Roberta Devers-Scott, was convicted on a felony charge of practicing midwifery without a license.

Devers-Scott's arrest, the result of an undercover sting operation, mobilized midwives in New York, who in the past year have staged four rallies at the capitol and around the state. At first supportive of the licensing measure, lay midwives say that the bill was hijacked by the American College of Obstetricians and Gynecologists and the American College of Nurse Midwives two weeks before its passage. Ultimately, the law included stringent education requirements that few lay midwives can meet. To be eligible to take a licensing exam, applicants must have a master's degree in midwifery or its equivalent. Otherwise, they must attend a one-year graduate program offered at the State University of New York Health Science Center in Brooklyn.

* * *

The situation could hardly be more different in Florida, where freshman Representative Daryl L. Jones, now a state senator, was motivated by his first child's midwife-assisted birth to champion the 1992 Midwifery Practice Act after others had been unsuccessful at pushing it through. Knowing that he faced the formidable opposition of the Florida Medical Association, Jones quickly targeted undecided legislators and, with the support of the Midwives Association of Florida, provided a steady stream of informational mailings. He also brokered 24 separate meetings with supporters and detractors. The nurse's union, which could easily have sided against lay midwives out of self-interest and philosophical differences, kept silent on the issue. The most critical ally, however, was Governor Lawton Chiles, whose daughter, Rhea, delivered her baby with a midwife and has since become a vocal advocate.

The result was a law that not only provides guidelines for lay midwives and makes them eligible for Medicaid reimbursement but also paved the way to open 21 new birthing centers. In the past several years, 52 lay midwives have been licensed, and an additional 60 are expected to apply this year after graduating from the four midwifery schools in Florida, including Miami-Dade Community College, the first public institution offering an associate's degree in the science of midwifery.

Along with 11 other states, Florida uses a licensing exam provided by the North American Registry of Midwives. The test, which has written and practical components, requires familiarity with both home and center-based births. "If you can document that you have learned the skills, you don't have to document that you learned behind four walls" of a classroom, says Ann Cairns, NARM's public education chairperson.

Indiana's Dawkins has applied for certification from NARM. Since she has been practicing for 18 years, it is quite likely she will be "grannied in," as midwives say. So while the debates continue in state capitols, she and her colleagues will continue what Dawkins describes as the "very shaky dance" of practicing their profession without breaking the law.

So if 100,000 people believe a foolish thing,
it is still a foolish thing.
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