Kentucky Midwives: the Trouble with Begging for Regulation
The Kentucky Home Birth Coalition (KHBC) is working to pass a law regulating and licensing Kentucky midwives. Here is a Youtube presentation on the proposed Kentucky midwifery bill. Here is the KHBC's website.
At yesterday's Take Back Kentucky meeting, Mary Kathryn DeLodder of KHBC and I presented our opposing views.
The bottom line is that, while we agree on the problems currently plaguing the midwifery situation here in KY, we strongly disagree on the solution.
Midwifery was "legalized" in Kentucky in 1954, requiring a permit to operate in the open.
In 1975, the state stopped issuing permits with no explanation. This has caused Kentucky midwives to operate underground for the last 41 years. No arrests have ever been made.
There has been no uptick in injuries, deaths or harm for the last 41 years. Clearly Kentucky midwives don't need oversight.
Still, there is a move on by a small group of midwives to heavily regulate/license midwives as outlined below.
The state's authority to regulate midwifery is outlined in these 3 statutes: KRS 211.090 Powers and Duties of Secretary, plus KRS 211.180 Functions of the cabinet in the regulation of certain health matters and KRS 194a.050 Execution of policies, plans, and programs (194.050 was repealed in 1998).
Don't you love how the state gives itself authority to regulate stuff?
While midwifery is technically legal in KY, before a Kentucky midwife can operate in the open, she is required a get a permit to be issued by the state (as long as the state deems in its infinite wisdom that "a need for such services exists locally." Sheesh, shouldn't the home birth parents get to decide that??)
But the state stopped issuing permits in 1975 without explanation. This has put Kentucky midwives in legal limbo for the past 41 years, requiring them to operate more or less underground.
Despite this, all the midwives I know are booked solid.
As a midwife's assistant-in-training, I have concerns about this bill. These are shared with the midwives and home birth parents I'm in contact with. The 7 major areas of concern are:
1. Why are licensing and regulation needed for Kentucky midwives?
Has there been an uptick in home birth injuries or deaths? (No.)
Has there been an uptick in lawsuits filed by dissatisfied parents? (No)
Since home birth is so safe, why do KY families need access to "legal and licensed" midwives?
Is there any substantial justification to push KY's midwives into a national certification? (Not that we can see. This is discussed in depth below.)
Why would we look to tie parents' and midwives' hands while reaching into everyone's pockets?
The single justification for this bill is that it would allow midwives to operate in the open. But licensing and regulation opens a Pandora's box of bigger, more complex and way more expensive problems. There are better solutions. (Discussed below as well.)
2. What will regulation accomplish?
Since home birth is already safe -- so safe that doctors in the UK advocate for home birth over hospital birth -- what will regulation accomplish?
Regulation doesn't make an activity safer. If it did, hospital and doctor error would not be the third leading cause of death in the United States.
Has regulation made it safer for naive buyers and sellers to work with a Realtor? Are all licensed plumbers competent?
Licensing has never made the slightest difference in safety stats for any industry. In fact, states with the strictest electrician's laws have the highest number of homeowner electrocutions because it's become so expensive to hire an expert.
Regulation only makes entry into a regulated profession harder, then more expensive to practice. This limits entry which is beneficial only for those already under the state's protection.
The first thing regulating Kentucky midwives will accomplish is to eliminate competition for CPMs (Certified Professional Midwives). I am NOT suggesting this is the reason behind the bill! I am simply stating a fact.
3. Will unlicensed midwives be arrested?
It has been suggested that unlicensed midwives will be arrested for helping mothers have their babies outside a hospital. That is certainly legally possible, although no midwives have ever been arrested in Kentucky for practicing without the permit the state refuses to issue. Arresting a midwife under these circumstances would be a public relations nightmare.
In fact, the last midwife arrested for practicing without a license, in IN in 2014, had her court date cancelled after a large crowd showed up at her hearing. AFAIK, no other court date has been scheduled. Source
4. The licensing shell game.
Remember when KY passed a law requiring seat belts, promising that no one would ever be stopped just for not wearing one? Today we have "Click it or Ticket": you can be stopped and ticketed just for not buckling up.
Licensing and regulation is always a toe in the door. Government grows at every opportunity, it is the nature of the beast and the reason why organizations like the TEA party and Take Back Kentucky were created.
The KHBC has offered a list of what their regulations will and won't include. There were 5 requirements listed under the "won't" section. While these are all in force in other states, the KHBC says they will not be in force in Kentucky. They are listed here with our concerns:
Won’t require Kentucky midwives to work under supervision or in collaboration with other providers | Do we really think legislators and doctors aren’t going to require that midwives be supervised by “other providers”… like doctors? Is the KY legislature known for its hands-off attitude?
The state won’t determine which conditions would be defined as high-risk | In fact, that discussion is already underway.
Does not limit the location where Kentucky midwives may practice | This might actually be allowed to stand.
Kentucky midwives won’t be required to carry malpractice insurance | Of course they will. As a real estate broker in KY and FL, I’m required to carry E&O insurance in order to practice. Drivers are required, electricians, plumbers, contractors, doctors -- if not required by the state, then required by their associations in conjunction with insurance corporations. And we’re dealing with babies here... "for the children" is the mantra of legislators the world over.
Will not require pregnant clients to see an OB | This is already a requirement of the current law.
Remember, it costs legislators nothing to require stuff. Plus it makes them look busy and concerned about us.
During last year's Senate Health and Welfare Committee's discussion of the bill, Senator (Dr.) Ralph Alvarado, an obstetrician, has a list of concerns to be clarified after he takes time to study the bill (this list not exhaustive):
would like to see "more meat" re. regulations, and will be offering amendments to the bill (see the amendments from last year here);
wants more "connection" with medical community (it appears he means obstetric oversight);
believes the bill is creating a new area of medical professional (although midwifery predates conventional medicine, pregnancy is not a disease and delivery isn't a "medical treatment");
likes other state's requirement of 3 years training plus residency (although midwives have been delivering babies without any training at all for centuries);
wants more requirements, like a midwife providing a list of 20 births (a client list... this opens the door to an invasion of privacy, discussed below);
wants "health promoting and preventative care that is evidence-based" (evidence-based means evidence in line with conventional obstetric medicine - home birth parents choose home birth to AVOID conventional obstetric medicine);
an obstetrician on the board (overseeing the competition);
limits on high risk (see #2 and #4 above).
5. Unintended consequences.
There is a legal concept describing the process of following a law to its logical conclusion. This is how we can discern a bill's unintended consequences BEFORE the damage is done.
Following are possible unintended consequences to this bill:
A registry of all midwives and their customers: all moms who had a home birth, addresses, kids' names, birth dates, etc. (This is already on the amendments list.)
Home inspections by a government agent. Otherwise, how will regulators confirm all sanitary requirements have been met? Sanitary requirements are not in the bill yet... can you imagine it won't be with the health department in charge?
Does anyone think CPS won't get in on the game?
Today, primary and continuing education for doctors and nurses, studies and "science" are paid for by pharmaceutical companies. How long before that is the case with midwifery classes and CE courses?
How long before a vaccination discussion is required at a home birth?
Will the sanitary requirements include certain disinfection procedures? Over-disinfecting is what created nosocomial infections, like MRSA. (Nosocomial means hospital-acquired.)
Even well-intentioned regulations require sanctions to enforce them. Begging for regulation is asking for enforcement procedures: legal fines certainly, arrest and jail time for non-compliant midwives. Compliance at the pointy end of a gun.
6. What's the biggest downside to regulating midwives in Kentucky?
Expense and access.
"A Kentucky woman has two children at home; one car, which her husband takes to work 6 days a week for 13 hours at a time; and zero wiggle room in the budget. The nearest hospital, which is over 90 minutes away, has a Cesarean rate of over 50% and this woman knows from friends and relatives that admittance there means she loses any say over how she gives birth. While the children’s grandparents are happy to help with childcare when they can, they work full-time, too. For this family, an unnecessary surgery and extended hospital stay or re-hospitalization would be devastating. In Kentucky, 76 out of 120 counties have no obstetricians and many areas where women must drive at least an hour to reach one; there are zero birth centers, and few legal home birth midwives. Because home birth options are so limited by law, there is little transparency about who this family might hire to assist them outside of the hospital." Source
The training required, described here, will make becoming a midwife very expensive and time-consuming. How will midwives who practice in poor counties afford to get licensed?
Plus there is no school that offers this training in Kentucky. Wanna-be midwives and those already practicing may very well have to MOVE to get the required training.
7. The problems with an oversight board (a problem inherent to regulation).
The current plan calls for the legislature to create a Board of Midwifery to write regulations, oversee applications, set peer review standards, create a public complaint process. It is to be comprised of three CPMs [Certified Professional Midwife], one CNM [Certified Nurse Midwife] who has experience in OOH [Out Of Hospital] home birth and one community member who has used OOH care from a midwife.
This will have to be re-written to include the obstetrician Senator Alvarado wants on there.
This is how most regulating boards are set up, whether real estate, hemp, liquor, medicine: those already in the profession are given the power of permission. Even though we're talking about midwives and mommies, there's still a fox guarding the hen house.
With regard to complaints to a regulatory board, the vast majority of complaints are filed by licensees against either co-licensees or unlicensed practitioners. Not mommy against midwife, but midwife against midwife. Regulatory complaint boards are how the regulated punish each other.
Boards exist to give power to a very few, to limit competition, hand out political favors and reward campaign contributors.
Governor Bevin wants to get rid of as many boards and commissions as possible. There are literally HUNDREDS in KY costing taxpayers millions of dollars. This bill would create yet another.
Who benefits? Looks like NARM.org, the organization behind the bill, is the major beneficiary with forced member dues. Next in line are currently licensed CPMs who would see their competition eliminated. While it will allow midwives who can afford the stringent licensing requirements to practice in the open, it prevents those who can't afford it. How does this complicated and expensive bill benefit home birth parents and midwives? There are simpler solutions to the midwifery question that won't cost taxpayers a penny, and don't infringe on anyone's human rights to privacy and freedom.
Why not a voluntary organization that could have all the same requirements for membership?
Why not let parents choose a licensed or unlicensed midwife?
Will it be against the law for a parent to use an unlicensed midwife?
Why not repeal the current law? There have been no permits handed out since 1975, over 40 years ago, yet no increase in deaths or injury, no obvious lack in safety. Clearly Kentucky midwives don't need oversight.
Regulations don't make anything safer or more effective. They only increase costs and limit access.
The only midwifery problem we can see is that Kentucky midwives are operating in a gray area. The only sane solution is for the state to repeal the useless law now on the books. It has been successfully ignored for 41 years with no negative repercussions, except that home birth parents have a harder time finding a midwife.
Life hardly gets more private or personal than childbirth. Let's leave the process completely up to moms and dads and the people they freely chosen to be there, if any.
Doctor and hospital error 3rd leading cause of death in US: http://www.npr.org/sections/health-shots/2013/09/20/224507654/how-many-die-from-medical-mistakes-in-u-s-hospitals
Limiting midwifery hurts women, particularly low-income: http://www.truth-out.org/news/item/10899-midwives-say-limiting-their-freedom-to-practice-hurts-mothers-children-low-income-families
Home Birth vs. Hospital Birth: https://improvingbirth.org/2014/02/versus/
In other countries, midwives outnumber doctors. Source
U.K. docs urge home birth over hospital: http://www.nytimes.com/2014/12/04/world/british-regulator-urges-home-births-over-hospitals-for-uncomplicated-pregnancies.html
Excellent article on home birth stats: http://www.blogher.com/has-witch-hunt-indiana-homebirth-midwives-been-successful-ireena-keeslar-says-she-wont-attend-homebi
2014 IN midwife arrested for no reason: http://jennifermargulis.net/blog/2012/04/midwife-arrested-in-indiana-released-on-10000-bail/ (first court date was cancelled after a large crowd showed up, could not find a follow-up)
2006 IN midwife arrested after baby's death: http://www.wthr.com/story/4363414/bloomington-midwife-arrested-for-practicing-without-a-license (could not find a follow up)
KY C-section rates much higher than average, women seeking home births: http://www.wdrb.com/story/30600214/as-c-section-rates-soar-in-kentucky-some-mothers-are-pushing-for-more-natural-births
Violence against pregnant women because the state knows best: http://www.motherjones.com/mojo/2013/01/study-women-denied-legal-rights-because-pregnancy
History of midwifery: http://www.ourbodiesourselves.org/health-info/history-of-midwifery/