October 22, 2008
Volume 10, Issue 22
Midwifery Today E-News
“Midwifery and the Law”
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In This Week’s Issue:

Quote of the Week

"Being in jail is the same for a midwife as being out of jail. You sit around and listen to women tell their birth stories."

Gloria Lemay

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The Art of Midwifery

Childbearing women in the US live with [an] unusual feature when it comes to women's rights in childbirth. Our country has the sad distinction of having come up with the court-ordered cesarean. This legal assault upon the integrity of a woman's body allows public officials to pose as better caretakers of our babies than we are, by stereotyping women who oppose such surgery as "selfish" or bad mothers whose babies need state protection. It is galling—to say the least—that we continue to live with such a lack of legal protection in a country that prides itself on inventing feminism and on valuing motherhood as highly as apple pie.

Because our society includes such extremes, the arrival at some measure of unity among self-respecting midwives and those who advocate for them is much more challenging than in many other countries. Even so, I continue to believe that a goal of unity (focused vision) is well worth striving for. In fact, I believe that it is critical to the development of a responsible, autonomous, sustainable midwifery profession in the US.

Ina May Gaskin
Excerpted from "Unity," Midwifery Today, Issue 64, Winter 2002
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Research published [in 2007] concluded that hospitals' articulated reasons for closing or placing limits on their related midwifery services are not necessarily what is motivating such moves.

Looking at two cases in which hospital-affiliated midwifery services had good outcomes, the researcher in this report conducted 52 detailed interviews with midwives, nurses, administrators, childbirth educators, policymakers and physicians and reviewed archived data such as e-mail, policy statements and memos.

In one of the cases, the hospital had claimed that too many of the women served were high-risk, so midwifery was not safe. In the other case, an increase in malpractice insurance was given as the reason for closure. No documentation backed up either of these claims; and the interviews and data analysis showed that the midwifery practice in fact represented competition for the hospital, doctors or both. In other words, the hospitals and doctors got less business if women had access to midwives, yet the public messages related to safety and liability.

The author of the study also pointed out that the US medical education system pays subsidies for medical residents, creating a disincentive to using midwives. Finally, she noted that since most state laws require that midwives be overseen by doctors, they are dependent on their competition, putting them at a disadvantage.

This small study reflects the reality that health care, as we know it in the US, is not necessarily about providing the best care for citizens, but about protecting the interests of the system. The logic of cost-saving and efficiency is also lost in this system.

Social Science & Medicine 65(3): 610–21

Midwifery and the Right to Privacy

The argument that restricting midwifery violates a mother's right to privacy is futile. A woman has a fundamental right to make personal decisions about procreation, marriage, contraception, child rearing and education; but she does not have a fundamental right to decide how, where or under whose assistance she gives birth because, after the second trimester of pregnancy, the state acquires an interest in protecting the unborn, "viable" child. A woman's freedom to choose must yield to this interest. Thus, the right to use a midwife is not a fundamental right. Challenges to statutes restricting that right on grounds the statute violates a mother's right to privacy must survive only rational basis review, and therefore, will likely fail. The case law shows us why.

In 1976, California required midwives to be certified. Three uncertified midwives challenged the statute on grounds that requiring certification violated a mother's right to privacy. The California Supreme Court held that, because a mother's privacy interest came second to the state's interest in protecting the mother and unborn child after viability, the right to use a midwife was not a fundamental right and the statute must survive only rational basis analysis. Establishing qualifications on which consumers could rely made the certification requirement rationally related to protecting mothers and newborns.

In 1987, a New Jersey appellate court upheld a statute requiring that a nurse have a license beyond the traditional nursing license to practice midwifery. Furthermore, nurses could practice only in licensed facilities with health care teams. A nurse challenged the act on grounds that it violated the right to privacy by precluding parents from using a birthing style and qualified attendant of their choice. The court held that, because the statute did not require women to give birth in a hospital or to obtain medical treatment, but merely regulated nurse-midwifery, no fundamental issue was raised and rational basis analysis applied. The statute survived rational basis review because the license and health team requirement was a reasonable approach to establishing the safest conditions for births attended by nurses.

In 1991, two Colorado direct entry midwives challenged a statute requiring one to have a nursing or medical license to practice midwifery. The midwives argued that the statute violated mothers' right to privacy by precluding them from choosing their method of childbirth. Citing Roe v. Wade, the Colorado Supreme Court held that the right to make personal choices about procreation did not extend to choosing whether to use a direct entry midwife to assist in childbirth. Thus, requiring midwives to have licenses did not violate the right to privacy.

In 1995, only a nurse or physician could practice midwifery in Alabama. A direct entry midwife charged with practicing nurse-midwifery without a license challenged the statute on privacy grounds. The Alabama Criminal Appeals Court held that because the right to privacy did not extend to choosing the manner of childbirth, a mother's privacy right was secondary to the state's interest in protecting mothers and newborns.

In 1996, Maryland also required at least a nursing license to practice midwifery. A direct entry midwife convicted of practicing registered nursing without a license challenged the statute. She argued that deciding where and with whom to give birth was a procreative decision, thus requiring a strict scrutiny analysis of the statute rather than rational basis review. The court held that no fundamental right was in question because the statute did not forbid a mother from using a midwife, but merely regulated midwifery. Thus, rational basis applied. Because the licensing requirement was rationally related to protecting mothers and newborns by ensuring that midwives were properly trained, the statute was constitutional.

These cases show that the right to use a midwife remains a non-fundamental right. Therefore, laws requiring licensure, practice agreements or other conditions to practice midwifery will, absent some wholly arbitrary requirement, be immune to privacy attacks.

In short, if a state can require persons performing abortions to be licensed doctors, then a state can require that persons assisting births be licensed doctors, nurses or midwives as well. This is why midwifery proponents should never argue that Roe v. Wade supports a mother's right to choose the manner and place of giving birth. Remember that Roe v. Wade did not give women the absolute right to have an abortion. Rather, it allowed them to have an abortion before viability, provided a licensed physician performed the abortion. Because midwifery involves the birth of a child after viability, assisted by a non physician, Roe v. Wade is not good precedent for a privacy argument. In truth, the only viable argument a midwife can make is that midwifery is an equally effective, or better, way to protect a viable fetus. This, of course, is an argument one should present to a legislature, not a court.

Erik L. Smith
Excerpted from "Midwifery and the Constitution," Midwifery Today, Issue 65
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Midwifery Today Magazine Issue 68Make sure you get the whole story.
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Web Site Update

Read this editorial from the current issue of Midwifery Today, Issue 87, Autumn 2008: The Power Belongs to Motherbaby—by Jan Tritten.

"In this issue we focus on natural remedies, such as herbs, massage, chiropractic and even humor. But we don't want to lose sight of the fact that the power needs to go to the mother. She must be ready to care for her baby and herself, though family and friends help."

The Homebirth Choice, an important article by Jill Cohen for prospective parents and their families, has been updated and is available online:

"This document discusses homebirth as one of many avenues toward a successful birth—one that results in a happy and healthy mom and baby. We offer this in support of education, freedom of choice and empowerment of women and their families. While aimed at parents, those considering the profession of midwifery will also find it a useful overview of what a midwife does."

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Question of the Week

Q: I am currently a labor and delivery nurse at my local hospital and am preparing to enter school to become a midwife. One of the most common questions/concerns I'm confronted with is the issue of meconium-stained amniotic fluid in a homebirth. I usually have answers for other concerns, but this one is always a little hazy. Do midwives who help moms deliver at home bring suction of some sort with them? Do they automatically transport to a hospital at the sight of meconium? Is it all dependent on the situation and the midwife?

Thanks for your help in understanding!

— Stephanie

SEND YOUR RESPONSE to mtensubmit@midwiferytoday.com with "Question of the Week" in the subject line. Please indicate the topic of discussion *and the E-News issue number* in the message.

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Question of the Week Responses

Q: How do you bill for your work in the laboring process prior to passing the patient off to an MD for a c-section?

— Elizabeth Wilson

A: Submitting successful claims for labor management that occurs before referral to a physician is possible. Reimbursement will become more consistent as we all begin to use the same codes and refer to the codes we use as "standard" for out-of-hospital birth practitioners.

The labor management code 59899 was designed for doulas and childbirth educators and is seldom reimbursed. The codes that are most successful and most closely match our services are 99354 and 99355, Prolonged face-to-face services. The first code reflects the first hour of care for initial evaluation and establishment of monitoring, as well as transportation and equipment setup. The second code is submitted in half hour units for ongoing labor and fetal monitoring. For example, if you have cared for a woman for 13 hours, after submitting the first hour the remaining 12 hours would be entered as 24 units on line 24 G of the form.

These codes require inclusion of a labor summary, which should clearly and succinctly show total hours, the need for on-site care, management of complications, the reason for transport and the person to whom care was transferred. I also include a standard handout that explains the use of this code. Make sure that your clarification handout includes the fact that because CPT codes were created with hospital birth in mind they are not always specific for out of hospital services. In this way, the handout will help facilitate understanding and processing of these claims. Briefly explain that nursing and technical staff provide both the professional and technical components of labor and fetal monitoring, equipment setup and maintenance in the hospital setting and that the facility fee compensates for those services. When labor and delivery occur out of hospital the midwife is responsible for those same services (you can even include a state administrative rule) and it requires a separate procedure code. State as a fact that the codes that most closely describe these services and are commonly used for claims submissions by home delivery practitioners are the 99354 and 99355.

Some midwives even submit these codes for all labor management for births that are NOT transported, because these services aren't a part of 59400. This is less frequently reimbursed, but certainly is a reasonable submission. In these cases, some time frame—typically two hours of labor and fetal monitoring and assessment—are folded into the Global Obstetric code 59400 before determining units. The one exception is when the initiation of monitoring services and equipment setup fall within the two hours immediately preceding birth. In that case, those services can be claimed separately.

Finally, create a reasonable fee schedule. My recommendation is that your unit total for a 24-hour period should certainly not exceed a reasonable daily fee for those same services in a licensed birthing facility in your area.

This has worked well for me. Good luck!

— Maryl Smith

A: I am a midwife in South Africa. I find billing an awkward part of my work, but necessary. I do my work because I love it and therefore I give all I have. This is not changed by the outcome of the birth, so my fees stay as they were for a hospital birth. The time and dedication I have invested are substantial and often I feel I have earned my fee more so than when attending a two hour birth of a multipara. I realize that this can be very difficult for some clients, so I offer them a very liberal pay plan which they can work out as it suits them with no extra costs. A very good friend of mine once said: "If you do what you love, it will inevitably pay." That is the best advice I ever got. Good Luck.

— Natasha

Q: When my daughter's pregnancy was first confirmed she was happy, eating well and putting on a pound a week. She was given prenatal vitamin supplements and a week after she started taking them she began to get violently ill. She couldn't tolerate even the smell of toast, had vomiting and diarrhea and was living on baby food, as that was all she could keep down.

She had to be taken to emergency as she was so weak and dehydrated, even though she had tried very hard to drink plenty of water. She had to be put on a drip for fluids and couldn't even walk as she was so malnourished. She initially had put on 10 pounds, which she lost in a couple of weeks. Because she is a very petite girl she couldn't afford to lose much more. I really thought she was going to die. She lives in [the] US, so I could talk to her through Skype and I felt useless to help her.

They told her that she had a condition—hyperemesis gravidarum (HG)—that affects some pregnant women and causes this type of thing. I suggested maybe she shouldn't take the supplements, as I had heard that certain things like iron that aren't slow release can make you sick. At first she was worried about stopping them, as she thought that her baby was going to suffer. She was so desperate she thought she would try it, and within a few days she was back to her old self again. Even though she was very small she had always been a good healthy eater.

When she finally got an appointment with a doctor, she was given three other samples to try and each time she took one she was very sick. I've spoken to many doctors and they think it is a coincidence. I think not! She has stopped taking them all together and has regained her weight and is fine. I have researched about supplements and they all can cause problems and all the professionals say that you don't need these if you eat a healthy diet which she always has done.

Have other women out there been sensitive to these supplements? I hope that this information may help someone out there who encounters a similar problem.

— Teresa,

A: I experienced the same thing with vitamins in pregnancy. I have six children, oldest now 27. I did not supplement in my first two pregnancies and ate a great diet. In my third pregnancy, I started supplements and got sick every morning after I took them. After about two weeks, I stopped taking them and the symptoms subsided. For my subsequent 3 pregnancies, I choose not to supplement and had no morning sickness. I do not believe it was a coincidence.

— Jeanne Ohm

Responses to any Question of the Week may be sent to E-News at any time. Write to mtensubmit@midwiferytoday.com. Please indicate the topic of discussion *and the E-News issue number* in the subject line or in the message.

Think about It

On June 24, 2008, a Missouri Supreme Court decision reinstated a 2007 law making certified midwifery legal without the presence of a physician, allowing certified professional midwives (CPMs) to legally provide homebirths.

The Missouri Medical Association had claimed that allowing unlicensed midwives to practice medicine could put physicians who cooperate with them at risk of professional discipline. The Supreme Court ruled that they did not have standing to sue. (Standing requires them to show that they would be harmed.)

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I am putting out a request to get personal accounts and pictures of cord burning for a booklet and article for the World Health Organization, UNICEF, Doctors Without Borders and the UN. I would love to have personal accounts from other midwives/ birth attendants and families who have done cord burning. The booklet will also include benefits of leaving the cord long and lotus birth.

I have been an advocate of cord burning for 10 years. The first time it was shown to me by an elder midwife, I threw away my cord scissors and clamps. It is a practice that is especially important in tropical environments where tetanus/other bacteria are more predominant. Cord burning is beneficial to women without access to clean water and medical care. It is also extremely beneficial to babies that have lower Apgars (by taking the Qi from the placenta and redirecting it to the baby). Cord burning also completely cauterizes the umbilicus, making it very easy to take care of. The cord falls off within two days.

Bumi Sehat already put a booklet together which was passed out to many organizations and midwives after the tsunami in the Aceh region. It was a HUGE success! This one was in Indonesian and I am interested in translating them into many different languages.

This simple project will save many babies and get the word out on a very important practice. I am running low on time to put this together and get it out, so if you could take a few minutes to write me an e-mail with your experience(s), I would be SOOOOO appreciative!

Also, please put your name and whatever else that you may want to add (experience, credentials, etc.) so the right information can be published.

THANK YOU very much and many blessings from beautiful British Columbia!

Kelly Dunn

The issue on alcohol consumption (E-News 10:20) was interesting. One thought came to mind though:

It hasn't been uncommon to tell women that if they think they are in labor, but are not sure, to go home and have a glass of wine (only one). Some people think this is crazy, but then where I live, it isn't an uncommon practice in my area to prescribe morphine to pregnant women in prodromal labor so that they can get some sleep. My question is: How safe is morphine? Is there a totally safe dose?

Logically speaking, I would think a glass of wine would be less harmful to mothers and babies than morphine, but does anyone have information on this?

Just because it is medically prescribed doesn't mean it is safer.


Rochester, New York

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