What are the legal aspects of homebirth and midwifery?

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A birthing family is not in legal danger of prosecution in a homebirth in PA, because it is unconstitutional to be forced to birth anywhere. Accidental birth outside of a hospital is not a crime. There have been cases of bad outcomes (fetal or maternal deaths are the only concern and they are rare) being investigated, however since a family is outside of the hospital system, they cannot be held responsible for the problems.

However, if a mother does seek medical care and is under the care of a physician and THEN chooses to go against medical orders and then has a poor outcome it can be considered criminal because they were in the system and chose to go against it. It is safer from a legal point of view to never enter the medical-legal morass than to try to leave it once the series of involved parties has grown to include a hospital, doctors, their lawyers and a host of others.

The legal rights of parents are being more and more eroded as the birth industry grows stronger. Check with your legal counsel for the most up to date legal advice.

Unfortunately, the only fully legal and protected by law midwife in Pennsylvania is the Certified Nurse-Midwife (CNM).

Despite the fact that CPMs are registered, certified professionals, PA law does not recognize their degree. Midwives can be charged with the practice of midwifery without a license even when they hold the CPM degree. The dedicated women who show up to help a woman birth risk their freedom, bankruptcy and their financial lives to assist a woman in labor. Hopefully you understand that risk when you work with your midwife. CPMs often do their job as a spiritual calling.

Traditional Lay Midwives--TMs (granny midwives and traditional birth assistants) are women not recognized by any certifying body and have varying degrees of skill. Many do not choose to become certified because of convictions, not because of a lack of skill. Some fiercely oppose the recognition of certifications in midwifery because they believe birth is a natural process and should never be regulated by any government organization. Sometimes these women are part of religious groups and service those populations. Some of these TMs may be the most experienced midwives in an area, having been present at thousands of births with skills to rival the most educated midwife with degrees and certifications.. Reputation and personal choice favor highly in the selection of a TM and you must use caution in your selection of a midwife. These women face the same legal risks as CPMs, including jail, bankruptcy and fines but more so because of a lack of documentation of their training.

Technically, homebirth midwives in PA are alegal. They are tolerated in practice, however if there is an active complaint (a lawsuit) filed, a midwife may receive a cease and desist order. If there is a poor outcome hospital staff at the transporting facility may alert the authorities. While this is not as much of an issue in counties that are heavily Amish and Mennonite, areas with a more suburban and urban population are more likely to have a suspicious view of midwives and their activities.

CPMs and TMs can still be brought to trial for practice of midwifery without a license; this felony carries approximately a 2-year sentence. Currently, the law only recognizes CNMs as providers of midwifery care. Currently in PA a woman can have an unassisted labor at any time anywhere, which has a 40% higher chance of problems than an assisted delivery, but if a CPM or TM shows up to provide skilled care that midwife can go to jail for the practice of midwifery without a license. While it might seem archaic, it is the legal situation. But, the dedicated women who show up to help a woman birth risk their freedom. Hopefully you understand that risk your CPM/TM takes in order to attend you.

This lack of legal status in for midwives PA becomes a problem for those who are litigious. If you plan to sue your midwife or anyone else for a poor birth outcome, consider those practitioners who carry insurance, such as hospitals, OBGYNs and in hospital CNMs who have developed protocols to protect themselves from litigious suits -- that is why birth in hospital has the bizarre rituals it has developed.

CPMs and TMs are free to practice without those protocols, only because they risk their personal freedom and financial lives in the process. Midwives thrive in Anabaptist populations such as the Amish and Mennonites because the people of those populations will not sue the midwife for a poor outcome due to their religious convictions. While poor outcomes are rare, they can happen anytime in birth. When lawsuits do occur it often marks the end of a midwife’s career, causing financial ruin and at worst jail time for the midwife.

Part of choosing a homebirth is placing yourself- the mother and father- of the baby as the responsible party. If you cannot as a parent handle the fact that you might bear a child with severe problems, you might need to re-think what you are asking of reality. Anyone who risks the joys of birth also risks having a child who is less than perfect. If you choose to view such a birth, not as an Act of God, but as something that needs to have blame placed on someone, you are not a good candidate for homebirth.

If you need to express your grief and suffering on these matters through legal means, you must consider the hospital and its protocols as your only choice. You are responsible for the risks and benefits of your birth and the risks you put yourself and your child through in your life. It is your job to make sure the person you have decided to have in front of you during your birth is a qualified professional with the equipment, training and skills to handle your birth and what might come up in it. Midwifery cannot guarantee a perfect child but it can give you the best odds of it occurring.

There is no malpractice option for those who choose homebirth, so either choose homebirth because it is the right decision for you and your family and your belief system or go to the hospital and enjoy the standard of care there.