Legal, illegal, or alegal; certified or noncertified?

Certified Nurse-Midwives can legally attend births in all 50 states (although not all can attend out-of-hospital births, due to various rules, regulations, legislation, or just plain politicking); Certified Professional Midwives can legally attend births in 26 states, with the remaining 24 states either outright making it illegal for them to attend births, or just not having statutes on the books one way or another (or they’re too vague). Some have noted that if non-nurse midwives (including certified as well as non-certified midwives) do not have legal protection, then they may be charged with practicing medicine (or midwifery) without a license, facing fines or even jail charges.

Many midwifery proponents advocate for changing the laws in the remaining states to make CPMs (or perhaps non-certified midwives as well) legal birth attendants, specifically, rather than relying on the gray area for protection. Not all do, though. Through the years, I’ve read numerous things on the subject, both for and against certification, with those against noting the potential downsides. I was made to think on this subject again with Gloria Lemay’s post. One of the things she notes is that legal midwives are often restricted from being truly autonomous, with the case in point of Canadian home-birth midwives being required to play by the rules dictated by doctors, including trying to jump-start labor at 41 weeks (by stripping the membranes), so these women could still qualify for a home birth, because otherwise they’d be induced at 42 weeks.

Molly at Citizens for Midwifery gives her thoughts, in this post, also linking to Gloria’s post, as well as a few others.

I favor certification for a few reasons — although I will admit that it is not without some reservations.

For one, it will standardize midwives, and I do think there are probably some midwives who need to be brought up to standards. How many there might be, I could not say, and without regulation, there is no way to know whether a midwife is qualified or not. Much like a driver’s license does not make you a good driver, but is merely an indication that you have passed a certain standard. In those states that do not have clear rules, midwives may be subject to prosecution anyway, and midwives would not have to become certified if they still wanted to operate outside the law. This may put them at a greater risk of prosecution, but it might not (if their position was uncertain or actually illegal before, then it wouldn’t seem to change much to continue to operate illegally); and it would certainly lower the risk of prosecution for midwives who did play by the rules. The downside, of course, is that “the rules” may be changed. I think this happened in Utah in the past year or two — midwives were first legalized, and then in a subsequent legislative session, a bill was at least under discussion, if not actually passed, to tighten the restrictions for births midwives could legally attend, including no VBACs, and no births where the mother had previously given birth to a child under a certain weight. So, if a mom had had a preterm birth at 30 weeks, regardless of the reason, or if she gave birth to two small twins, and then carried another child to term — despite the fact that this baby and this pregnancy were normal and non-eventful, a midwife would be legally unable to attend her birth. Or, the rules may not be evidence-based, or may be otherwise too restrictive. Also, Australian home-birthing has been undergoing some serious problems, with the legislature essentially writing a law making it illegal for midwives to attend home births (due to insurance regulations and restrictions). While it appears that that has been tabled, or at least is still under serious discussion and hopefully some renovation, midwives who attend home-births without insurance will be stripped of the legal title of midwife for the first “offense”, and then a subsequent “offense” will have them subject to a $30,000 fine and possibly jail time. However, in America, midwives may be subject to a fine and jail time in certain states now, even though they could be certified and legally practice in other states. So, I think on balance, it is better to at least have that as an option.

Certainly, government regulation can be a two-edged sword — giving with one hand while taking with the other. But it would be proof of meeting a standard, and we don’t have that now.

Without a standard and/or certification, a woman may hire someone who is truly not qualified to be a midwife, but she may not know that. If a woman calls herself a midwife, even though she has no training or very little training, mothers may assume that she is well-qualified, or has passed certain rigorous standard or testing, and/or has studied extensively. One midwife I read about said that she began attending births after some women found out that she had had a home birth (probably an unassisted birth), and asked her to attend their births. She did not mention any form of education about birth, except having given birth to her own children. While on one hand I can say, “As long as the mothers knew her skill/education level, then that’s fine”; on the other hand, I have to wonder/worry if other women may not know and just assume that she has the training of certified midwives. Often, women don’t know what to ask about, when interviewing a care provider — either just going with whoever is covered by their insurance, or assuming that all OBs are the same, or just are unfamiliar with the wide variation in practice styles of care providers (high vs. low rates of episiotomies, C-sections, etc.). The same may apply to midwives, as well, with women making assumptions based on a title.

Another factor on legality is that illegal midwives may be hesitant to transfer, fearing prosecution. This may end in higher morbidity or mortality for babies.

There is a lot that could be said on this topic. A lot of positives and negatives could be given about certification. I’m not dogmatic about it, and can be friends with people of differing opinions. What are some of your thoughts?


11 Responses

  1. You said you are for licensure because, ” it would be proof of meeting a standard” Please explain why you don’t think CPM certification is enough proof? CPM’s are trackable, meet safe skill requirements for attending homebirths (something even CNM’s aren’t trained to do), and can be disciplined, when appropriate

    • I do think that certification is enough proof (if I didn’t think so, I wouldn’t have chosen one for my second pregnancy). Perhaps I am wrong, but my understanding is that CPMs in unlicensed states are not called CPMs, though they meet the standards. I’ve read stories in which midwives say they “could be CPMs” were they in another state, but their state is an illegal/alegal state, so they can’t be certified, though they meet the qualifications. Perhaps I am mistaken in my impression.

  2. You can be a CPM anywhere, whether you’re legal to practice as one or not is dependent on your state’s laws. So, many midwives in alegal/illegal states don’t feel like it makes sense to expend the time and energy to earn their CPM, when it isn’t recognized in their state. They could earn it though and still be a CPM, wherever they live–they would just still be illegal or alegal anyway.


  3. “standards” and “evidence” are derived from watching mammals give birth in captivity. Most women wanting homebirth are looking for a domesticated mammal experience which is very different.

    I think it is a common but unfounded illusion that “without regulation, there is no way to know whether a midwife is qualified or not.” Having hired two unregulated midwives myself, I must say there were many ways to tell if they were qualified. A prenatal clinic is a difficult thing to fake. It tells the consumer a lot. When I had the first clinic with my first midwife, I could tell immediately that she was much more thorough than any of the 5 doctors I had seen up to that point. I also could tell that she was the first person who palpated my belly as if there was a real baby in there. That’s what sold me on her.

    I’ve seen women who “dabble in midwifery” because they think it would be cool. The consumers move away from them very quickly because they do know there’s something missing.

    I like what Sister Angela (CNM) says about who should be a midwife: “If you call yourself a midwife, I support you.” Ultimately, if a woman shows up at a homebirth, it is an act of organization, commitment and courage. If she is the one the mother feels good with, that will assist in a smooth birth. Remember, the competition is physicians who have been doing so much harm over the past 100 years that even a chimpanzee would be a better birth companion.

  4. Why not strip the membranes? What is the negative effect of that intervention? I think better to strip the membranes than induce at 41 weeks when the cervix is long thick and closed.

    I would like to see more birth centers open up in order to give women more choices. I would like to see these birth centers close to big hospital so if the shit hits the fan a transfer would be quick and the records would be accurate. If I am transfering a woman from a birth center to the hospital, I think they should open the OR. You don’t have to use it. but opening it saves time.

    • It may break your water (thus necessitating birth on a long, thick, closed cervix), perhaps lead to infection, and can be painful. And if the woman’s body or baby isn’t ready to go into labor…? It may not start labor, but may cause false labor which can be annoying, painful, and lead the woman to believe that she’s really in labor (with all the emotions that go both with that, and then finding out she’s not — or getting “augmented” when she’s not really in labor). I think the main thing is that it’s messing with a natural process unnecessarily, and perhaps without good evidence for it.

  5. If you took a healthy young man, laid him down on an exam table and reefed around inside his foreskin until you had blood on your glove, he’d either kick you in the head or call the police and charge you with assault.

    Women don’t seem to understand what the problem is when that is done to them. It’s assault and has no place in midwifery.

  6. Stripping membranes is not assault when a woman consents to having it done. It does have a place in midwifery if a woman chooses that for herself. I offer it along with an explanation of what it is, what it does, and the potential risks. Some women decline, which is fine. Some women want it, which is fine. It’s their choice, not mine.

    FYI, you can’t strip membranes in someone who is closed and thick. You have to be able to get a finger through the cervix to strip. At best, all you can do is massage the cervix if it’s closed and thick. Stripping membranes does not lead to infection from anything I have read Kathy? Clarification on that would be great?

    • While there is not much in medical literature that I’ve read showing greater risk of infections from stripping membranes, there have been a couple of things. First, “No Need to Sweep” notes that a randomized controlled trial of 300 women noted no good difference between women who had their membranes stripped, but in women who were dilated >/=1cm had higher rates of prelabor ROM (which can, of course, be caused by an infection, and/or can lead to an infection if the baby is not born within a reasonable amount of time). Secondly, this article on GBS said, “In a series of eight case reports, Dr. Stamm of the University of Colorado, Denver, described how cervical manipulation or membrane stripping preceded perinatal sepsis and even one instance of stillbirth caused by invasive group B streptococcus (GBS) as well as other pathogens.” And from <a href=""the Gentle Birth website, “Avoid membrane stripping in GBS positive mothers: Studies using ultrasound contrast media show “facilitated transport” of vaginal fluid into the lower uterine segment during cervical manipulation. We have reported three perinatal deaths after membrane stripping in GBS positive mothers at term. GBS vaginitis is well reported.”

      Perhaps not a huge risk, esp. in non-GBS+ mothers, but still a risk.

  7. […] “proof of lack” Posted on October 7, 2009 by Kathy In my recent post regarding whether or not to legalize midwifery, there was an angle I wanted to explore, but did not have the link in hand. Now I […]

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