Poll- Do you support "underground" midwives? - Page 10

[slmommy]

Buzz the map reflects what the article says here: 

Quote:

Practising as a direct-entry midwife is still (as of May 2006) illegal under certain circumstances in Washington, D.C. and the following states: Alabama, Georgia,Hawaii, Illinois, Indiana, Iowa, Kentucky, Maryland, North Carolina, South Dakotaand Wyoming.^[44] However, Certified Nurse Midwives can legally practise in these areas.

Which if you look at the Mana state chart those are the states : "Legal by Statute, but Licensure Unavailable." or "Prohibited by Statute, Judicial Interpretation, or Stricture of Practice"

The other states, (not clearly legal and not clearly illegal), are in that grey area Valerie and Plummeting are discussing. If you know you are in one of those weird states - and don't want an "illegal" mw, then DON'T get a cpm... (do one of the other options lovebeingamomma listed - uc, birthcenter, hospital, travel to another state.) If one is very concerned about the legality, why not go a very clearly "legal" route? The law in some areas is unclear about cpms, so go with a clear legal option. I really don't see how this is so complicated. 

Edited by slmommy - 3/16/12 at 4:07pm

[Valerie]

Originally Posted by Plummeting 

But what I'm saying is that the term is irrelevant. She's saying that if the law doesn't specifically allow midwifery, it's illegal. I'm saying that if the law doesn't mention it at all, that is going to be determined by a jury, IF it's ever prosecuted, and it might not be. So then where are we? You're saying it's illegal in places where women get prosecuted, but what about when they're found innocent? Was it not illegal? Do you believe the jury was just too stupid to understand the law? What are you saying?

For instance, since you're a lawyer, you know that in many states, the "practice of medicine" includes doing anything for the treatment of disease/illness/injury. Pregnancy isn't a disease, illness, or injury. If a midwife isn't giving medications she's not authorized to give, she's got a good case for herself, if she's attending a normal, low-risk birth, which is, by definition, none of those things described above. So if she's prosecuted for practicing medicine without a license, sure, they can DO that, but did she really practice medicine without a license, if all she did was catch a baby? Not by the state's own definitions she didn't. That would mean that what she's doing is not illegal. Something isn't illegal just because someone finds some way to contort the law around to make it so.

The term is not at all irrelevant. Many midwives continue to use it in the sincere belief that they really are "alegal" and safe from prosecution if they don't do anything that they consider to be "practicing medicine." I have had this debate many, many times with midwives who believe that "practicing medicine" is limited to giving drugs, suturing, and starting IVs. What I am saying is this (although I think I have said it before): In states where midwives are not licensed and regulated, nor specifically exempt from the medical/nurse practice acts, they are subject to prosecution for practicing medicine/nursing without a license. In other words, ILLEGAL. Or, to put it another way -- if a midwife does the same things a doctor or nurse does, but is not a licensed doctor or nurse (or working in a state where statute explicitly states that she doesn't have to be licensed to do these things), she is practicing illegally, and takes the risk of arrested, prosecuted, and convicted of practicing medicine or nursing without a license. Having said that, it should be noted that some states prosecute midwives and some do not. Some states simply don't have the money or the inclination to chase down midwives; some states may ignore midwives for years and then -- under a new administration or some other impetus -- decide to begin investigating them. As Buzzbuzz pointed out in a previous post, the reluctance of a state to prosecute midwives should not be interpreted as an endorsement of the legal status of those midwives!

I agree with you that the first place to look for the definition of medical practice is statute, but your pronouncement that "pregnancy isn't a disease, illness, or injury" doesn't help us much.  First of all, if the state is prosecuting a midwife for practicing medicine without a license, it is using *its own definitions* to do so.  You state that "by definition"  catching a baby is not the practice of medicine.  Perhaps by your definition, or the definition of midwives, but in prosecuting a criminal case, the state doesn't take a poll to see which definition is preferred by the defendant. 

Second, even if we accept that pregnancy is "not a disease, illness, or injury" but rather "normal" and "low risk," what sorts of things does a midwife do during the pregnancy to make sure that the pregnancy is normal?  Urine dipstick testing? Fundal height?  BP?  Let's say she does a fingerstick to check for hemoglobin.  Perhaps it is a little low, and because she is a good midwife, she suggests to the client ways in which she can increase iron levels to increase her blood count.  In this case, hasn't she just diagnosed and treated a medical condition?

Finally, in your post you refer only to practicing medicine without a license.  Please bear in mind that midwives in increasing numbers are being ordered to cease and desist the unlicensed practice of NURSING or NURSE-MIDWIFERY.  The overlap there is even greater.

Valerie RN,  JD

[slmommy]

Quote:

Originally Posted by Buzzbuzz 

I'm also not sure I would be running to NARM for its opinion on this -- it certain has an interest in presenting things in the best light and is not a statement about what a prosecutor may or may not choose to prosecute in any particular state.

So it is ok to trust FDA but not MANA... (of course we all don't trust organizations we don't like). I don't know why MANA would lie about the state regulations of CPMs... the list was last updated May 2011, http://mana.org/statechart.html, don't you think there are any CPM's out there who need this info so that they can choose to NOT work in a state where the law prohibits or is murky about cpms? It is not an opinion, it is a list of the status of mw in various states. If someone wants more specific, go look at individual state legislation. Still not impossible to find and do not need to be a PI to do so. Or, you know, if one is so concerned about legality, go for an obviously legal option.

[Buzzbuzz]

Slmommy -- the paragraph directly before the one you quote says:

"In 27 states it is legal to hire a direct-entry midwife, or certified professional midwife (CPM).^[43] It is legal in all 50 states to hire a certified nurse midwife, or CNM, who are trained nurses, though this practice is rare as most CNMs work in hospitals.^[43] Some CPMs continue to attend mothers in the 23 states where it is illegal, and can be arrested and prosecuted, while efforts are underway to change the law."

So which is it -- 10 or 23?

[Valerie]

Originally Posted by Buzzbuzz 

Plummeting - I think you are explaining quite well for everyone else how easy it may be for a consumer to be confused about the legal status of her midwife.

Valerie -- is there a potential issue for doulas here as well, if they cross certain lines (in terms of advising, actions, etc.) even in states where only licensed midwifery is legal?

Another really good question, Buzzbuzz.  There certainly is a potential issue there, especially for doulas who work as monitrices.  Quite a few years ago, an Illinois doula received a cease and desist order (demanding that she stop practicing medicine without a license) after a mother planning a hospital delivered precipitously at home.  The family and doula quickly transferred to the hospital, but the hospital staff reported the doula to our state regulatory agency.  I think it is important that doulas become familiar with their state's medical and nurse practice acts, and how their state defines the practice of medicine and nursing. 

Valerie RN, JD
 

[Buzzbuzz]

You do realize that MANA is a midwife advocacy organization?  On its website it specifically lists as one of its goals:   "To promote public education and midwifery advocacy".

The FDA is a governmental entity supported by our tax dollars that is not an advocacy group.  Is the FDA perfect?  No, there are certainly improvements that can be made. 

However, when you are thinking of MANA you should be thinking about big Pharma advocacy/lobbyist groups as being parallel organizations rather than the FDA. 

[Valerie]

Originally Posted by slmommy 

http://en.wikipedia.org/wiki/Home_birth#United_States

takes about all 3 seconds and has a map. There are many other resources that explain state-state specifics.

ETA - http://mana.org/statechart.html very specific about legality/licensure/not regulated but not prohibited/prohibited for CPMs

For quite some time, some of us (a group of attorneys who deal with issues related to midwives and homebirth) have been nudging NARM to change that chart.  Some of it (especially those parts that refer to "legal by judicial interpretation" and such...) reflect a misunderstanding of the law and a misinterpretation of how it works.  Again referring to Ida Darragh's excellent essay in From Calling to Courtroom, she writes:

"Midwives in illegal states accept the necessity of practicing underground until they eventually retire, leave the state, get arrested, or change the laws. Midwives in the other states are living with the most uncertainty because of the fallacy of "alegal" status. They spend years in training, invest in setting up a practice, sometimes work for years establishing a reputation, and then one day when least expected comes "the knock on the door." Life changes at that moment. Her clients have to find someone else; all her time and money go toward her defense; her family tries to understand but nothing seems fair; and she questions her own sanity. "But wait," she cries, "I'm legal by judicial interpretation or statutory inference!"

Valerie RN, JD

[Plummeting]

Originally Posted by Buzzbuzz 

Plummeting - I think you are explaining quite well for everyone else how easy it may be for a consumer to be confused about the legal status of her midwife.

And I think you are confusing the fact that I'm not a lawyer with an inability to determine whether or not my midwife can actually practice without the fear of prosecution. I've been quite aware of what the laws were in both states in which I have planned to use a home birth midwife. As I ALREADY explained, in this state, midwifery is technically legal, but midwives can't be licensed and they can't administer medications, HOWEVER my midwife is also an ND, and therefore she CAN do all sorts of things, including start IVs, carry certain drugs, prescribe certain drugs, etc. (because NDs have limited prescriptive power in my state). I'm pretty sure that means I understood exactly what the legal status of my midwife is in this state. If I lived in a state in which midwifery was completely unregulated, I'd be a little more clear on exactly how it worked in that state. The fact that I haven't needed to become highly versed in that particular situation in no way constitutes an inability to do so. To suggest that it does says more about your character than it does about my ability to learn something I need to know. 

[slmommy]

Originally Posted by Buzzbuzz 

Slmommy -- the paragraph directly before the one you quote says:

"In 27 states it is legal to hire a direct-entry midwife, or certified professional midwife (CPM).^[43] It is legal in all 50 states to hire a certified nurse midwife, or CNM, who are trained nurses, though this practice is rare as most CNMs work in hospitals.^[43] Some CPMs continue to attend mothers in the 23 states where it is illegal, and can be arrested and prosecuted, while efforts are underway to change the law."

So which is it -- 10 or 23?

The map is what the text states regarding those states where it is clearly illegal by legislation - as I thought I clearly stated above. This wikipedia article info is from 2006, and I would never use wikipedia as the end all be all of research, but as a quick starting point. If someone chooses to not do research, look at one source, or take the word of someone else, that's on them.

According to Valerie, it seems as though it is "illegal" in those other "murky" states, so while there is difference in legislation/clarity, she is saying it is illegal in all 23, (or current 2011 number if different). Which is what the above paragraph stated. What is unclear is that the map is showing the states with specific legislation making cpm illegal.

I still do not understand about how you can be unclear about whether or not your midwife is illegal or potentially illegal. Some women don't care. If it is very important to you that your mw is legal - and you know cpms are clearly illegal or are wondering about the shady legislation - then don't hire one. If a cpm is advertising herself as a cnm, that's a whole other legal issue, is it not?... and wouldn't you be able to ask to see a cnm's license/diploma if you were concerned? Wouldn't you find out if your mw is a cnm or cpm or neither? Why would you just take their word for how they understand their legality? If she is a cpm in a state cpms are illegal, even if she believes she is not illegal, why would you hire her if concerned about the legality? I have a feeling most women who hire cpms in the "shady" states are not that concerned about the legality, know their mw is a cpm, and take her word for her understanding of legality because they believe the legal reprecussions are on her side, or just don't care. That is not the same as someone like the OP who was VERY concerned about the legality and should go for a clear legal option if that is the main concern in her selecting a care provider.

[slmommy]

Originally Posted by Valerie 

For quite some time, some of us (a group of attorneys who deal with issues related to midwives and homebirth) have been nudging NARM to change that chart.  Some of it (especially those parts that refer to "legal by judicial interpretation" and such...) reflect a misunderstanding of the law and a misinterpretation of how it works.  Again referring to Ida Darragh's excellent essay in From Calling to Courtroom, she writes:

Valerie, is the chart in any way incorrect in specifying in which states cpm is "regulated?" As far as I understand it, it is fairly clear to see in which states it is clearly legal.

Anyone concerned more about the legality than anything else in hiring a mw, should probably err to the side to caution, if legality is their primary concern.

[Valerie]

Originally Posted by Plummeting 

And I think you are confusing the fact that I'm not a lawyer with an inability to determine whether or not my midwife can actually practice without the fear of prosecution. I've been quite aware of what the laws were in both states in which I have planned to use a home birth midwife. As I ALREADY explained, in this state, midwifery is technically legal, but midwives can't be licensed and they can't administer medications, HOWEVER my midwife is also an ND, and therefore she CAN do all sorts of things, including start IVs, carry certain drugs, prescribe certain drugs, etc. (because NDs have limited prescriptive power in my state). I'm pretty sure that means I understood exactly what the legal status of my midwife is in this state. If I lived in a state in which midwifery was completely unregulated, I'd be a little more clear on exactly how it worked in that state. The fact that I haven't needed to become highly versed in that particular situation in no way constitutes an inability to do so. To suggest that it does says more about your character than it does about my ability to learn something I need to know. 

What do you mean by "technically legal"?  If midwives in your state "can't be licensed," then how is it that they are authorized to practice midwifery?

Valerie RN, JD
 

[Valerie]

Originally Posted by slmommy 

Valerie, is the chart in any way incorrect in specifying in which states cpm is "regulated?" As far as I understand it, it is fairly clear to see in which states it is clearly legal.

Anyone concerned more about the legality than anything else in hiring a mw, should probably err to the side to caution, if legality is their primary concern.

I agree.  To the best of my knowledge, it is no problem to specify which states provide for the licensure of direct-entry midwives.  All you really have to do is look at statute.  It is when direct-entry midwifery is not addressed by statute that problems arise. 

Valerie RN, JD
 

[Youngfrankenstein]

Originally Posted by slmommy 

I still do not understand about how you can be unclear about whether or not your midwife is illegal or potentially illegal. Some women don't care. If it is very important to you that your mw is legal - and you know cpms are clearly illegal or are wondering about the shady legislation - then don't hire one. If a cpm is advertising herself as a cnm, that's a whole other legal issue, is it not?... and wouldn't you be able to ask to see a cnm's license/diploma if you were concerned? Wouldn't you find out if your mw is a cnm or cpm or neither? Why would you just take their word for how they understand their legality? If she is a cpm in a state cpms are illegal, even if she believes she is not illegal, why would you hire her if concerned about the legality? I have a feeling most women who hire cpms in the "shady" states are not that concerned about the legality, know their mw is a cpm, and take her word for her understanding of legality because they believe the legal reprecussions are on her side, or just don't care. That is not the same as someone like the OP who was VERY concerned about the legality and should go for a clear legal option if that is the main concern in her selecting a care provider.

I agree with this.  I still don't know how to just say I know my midwife isn't licensed by the state and therefore we both engaged in a practice that was illegal.  I still feel it was safe.  So, yes, I supported my "underground" midwife.  I would do it again.  

I assume others disagree. Fine.  What are we arguing about?
 

[Valerie]

Originally Posted by Youngfrankenstein 

[W]e both engaged in a practice that was illegal.

What did *you* do that was illegal?

Valerie
 

[Youngfrankenstein]

Originally Posted by Valerie 

What did *you* do that was illegal?

Valerie
 

I knew that she'd be bringing pitocin, for example.  She didn't have to use it for me but it was a contributing factor to why I hired her.

[Valerie]

Originally Posted by Youngfrankenstein 

I knew that she'd be bringing pitocin, for example.  She didn't have to use it for me but it was a contributing factor to why I hired her.

Ok.  I understand the implications of an illegal midwife having and perhaps using Pitocin, but you said:

"I know my midwife isn't licensed by the state and therefore we both engaged in a practice that was illegal."  How is it that *you* "engaged in a practice that was illegal"?

Valerie RN, JD 

[Youngfrankenstein]

Originally Posted by Valerie 

Ok.  I understand the implications of an illegal midwife having and perhaps using Pitocin, but you said:

"I know my midwife isn't licensed by the state and therefore we both engaged in a practice that was illegal."  How is it that *you* "engaged in a practice that was illegal"?

Valerie RN, JD 

Well I suppose there's nothing I did that was illegal.  Maybe throwing the placenta in the trash!  I guess I'm stating that I knew "the score" when I hired her.

[rs11]

It's easy for people who live in states where midwifery is legal to get down on illegal midwives.

I live in Alabama. It is illegal to have anyone help you at a homebirth -even a husband or partner. They can and have been known to prosecute in such instances. CNMs are legal, but they all work at hospitals and most aren't allowed to attend the actual delivery; that has to be done by an OB.

Natural birth is out of the question at most hospitals; VBACs are banned at most. If you try to refuse a repeat c/s, they'll do it without your consent. The c/s rate at some of our hospitals is over 50% -and climbing. Inductions and interventions are routine. Just try and get up and walk around during labor at most hospitals and see how quickly you get doped up -if you don't get taken to the OR.

In response to this craziness, there are a lot of underground midwives -almost all of whom are licensed and certified in any of the surrounding states that allow midwifery. Hundreds of women use them each year, and hundreds more travel outside the state to see other midwives. I intend to do the latter, but if I had no other choice in the matter, I would go with an underground midwife if I could. And I say this despite having one of the best OB/GYNs in the state.

[qweasd00]

thanks

[carlye828]

Originally Posted by abc123xyz 

I support all midwives, particularly if they are practicing illegally. Mostly because they are willing to risk ALL they have for the rights of women to birth where they choose with whom they choose! Of course, I would check into their previous work and speak with others who have worked with them. I did request that info from our midwife. When you live in a state where homebirth midwives are illegal, you become a HUGE advocate for all those who are practicing under the radar! No one should have the right to tell me who I choose to employ to catch my baby. I can do it home alone with no skilled birth attendant and it be totally legal, and possibly un-safe, but to have a skilled birth attendant could cost her everything she has because she's practicing illegally? I don't think so! It's my body, my baby, my birth, my choice who takes part in the experience! There are a ton of Dr's out there who should not have licenses and likewise, a lot of midwives who shouldn't either. It should be consumer choice not dictated by an arbitrary government mandate who only cares because it's putting money in their own pockets! Licensing is just another for of tax and as far as I'm concerned, I love un-licensed midwives and support them 10000%!

Exactly!  Couldn't have said it better myself!