1. When feminists speak about choice, the principal topic is often abortion and the right to terminate pregnancy. The lack of choice in childbirth, however, is beginning to attract the interest of today's feminist political mainstream. Many organizations concerned with women's rights are in the process of broadening their view of reproductive rights to include midwifery. For example, in Florida, the following organizations supported or lobbied for the Florida midwifery bill which passed in 1992: the Florida chapter of the National Organization for Women, Florida Healthy Mothers/Healthy Babies, the Academy of Florida Trial Lawyers, the Florida Women's Political Caucus, and the Florida chapter of the American Association of University Women. Interview with Beth Swisher, legislative lobbyist, Florida Midwives Association (Mar. 6, 1992).

 

2. Allopaths are known simply as "doctors" or "physicians" today. "Allopathy" is a "method of treating disease with remedies that produce effects different from those caused by the disease itself. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 95 (3d ed. 1992). Allopathy can be distinguished from other healing systems such as osteopathy, chiropractic, homeopathy, and naturopathy.

 

3. Dr Michel Odent, Address at the Meeting of the National Alliance of Parents and Professionals for Safe Alternatives in Childbirth (Aug. 16, 1986). Dr. Odent was formerly the director of the state hospital in Pithiviers, France. and is presently Director of the Primal Health Institute in London. The Institute researches the long-term health effects of medical interventions and other factors from the beginning of pregnancy to the end of infancy.

 

4. See Diana Korte, Infant Mortality: Lessons from Japan, MOTHERING, Winter 1992, at 85.

 

5. See Id., at 86.

 

6. MARGOT EDWARDS & MARY WALDORF, RECLAIMING BIRTH: HISTORY AND HEROINES OF AMERICAN CHILDBIRTH REFORM 175 (1981) (quoting the U.S. Dept. of Consumer Affairs, citation omitted).

 

7. Korte, supra note 4. at 84.

 

8. Id at 86.

 

9. Council Directive 80/155, art. 1, 1980 O.J. (L. 33) 8.

 

10. In this article "midwife" does not mean certified nurse-midwife unless otherwise specified.

 

11. The Direct Approach. NURSING TIMES, Oct. 12, 1983. at 11.

 

12. See DEBORAH A SULLIVAN & ROSE WEITZ, LABOR PAINS: MODERN MIDWIVES AND HOME BIRTH 1-19 (1988).

 

13. See generally id at l18-24.

 

14. J.G. Kloosterman. Why Midwifery? THE PRACTICING MIDWlFE. Spring 1985, at 5.

 

15. Id at 7.

 

16. See generally id at 6-7.

 

17. Hospital Birth Deemed "Too Risky, " MOTHERlNG, Fall 1989, at 75 (citing CHICAGO SUN TIMES, April 2, 1989, at 19). Dr. Wagner is an American pediatrician and epidemiologist. Before the WHO, he worked for fifteen years in the United States in the areas of maternal and child health, and then for fifteen years in Europe in the same fields.

 

18. See, e.g., Marjorie Tew, Do Obstetric Intranatal Interventions Make Birth Safer?, 93 BRlT. J. OBSTETRICS & GYNAECOLOGY 659, 665, 667 (1986)(examples of iatrogenic complications).

 

19. Roger A. Rosenblatt, The Perinatal Paradox: Doing More and Accomplishing Less, 1989 HEALTH AFFAIRS 158, 159-62. 4.

 

20. SUZANNE ARMS, IMMACULATE DECEPTION 53-54 (1975).

 

21. Id at 54.

 

22. By 1961, the "normal length of labor" for first-time mothers had been shortened by up to 4.6 hours. See, e.g., J. ROBERT WILLSON, MANAGEMENT OF OBSTETRIC DIFFICULTIES 303 (6th ed. 1961).

 

A comparison of the 1971 and 1985 editions of Williams Obstetrics also demonstrates the trend of obstetricians shortening labor for institutional purposes. In 1971, the average length of the second stage of labor was one and one-third hours, LOUIS M. HELLMAN & JACK A. PRITCHARD, WILLIAMS OBSTETRICS, p. 396 (14th ed. 1971), compared to a median length of fifty minutes in 1985. JACK A. PRITCHARD ET AL., WILLIAMS OBSTETRICS 337 (17th ed. 1985).

 

23. Compare WILLSON, supra note 22, at 303 (sixteen to nineteen hours total) with Lewis E. Mehl, Research on Alternatives in Childbirth: What Can It Tell Us About Hospital Practice?, reprinted in 21st CENTURY OBSTETRICS Now! 171, 199 (David Stewart & Lee Stewart eds., 1977) (average of thirteen and one-half hours). See also BARBARA KATZ ROTHMAN, IN LABOR: WOMEN AND POWER IN THE BIRTHPLACE. 273 (1982)(discussing the impetus to shorten labor).

 

24. Mehl, supra note 23, at 199.

 

25. See ROTHMAN, supra note 23, at 273.

 

26. D.M.F. Gibbs, et al., Prolonged Pregnancy: Is Induction of Labour Indicated?, 89 BRlT. J. OBSTETRICS & GYNAECOLOGY 292, 295 (1982). See generally Tew, supra note 18.

 

27. See, e.g., Gibbs, supra note 26, at 293 (describing one hospital ward where induction was routine!

 

28. See ROBBIE E. DAVIS-FLOYD, BIRTH AS AN AMERICAN RITE OF PASSAGE 259-60 (1992)

 

29. ARMS, supra note 20, at 53.

 

30. Id at 161.

 

31. Id

 

32. NATIONAL CTR. FOR HEALTH STATISTICS, CTR. FOR DISEASE CONTROL, vol.. 40, No. 8, SUPPLEMENT, MONTHLY VITAL STATISTICS REPORT 7 (1991); SELMA TAFFEL, MIDWlFE AND OUT-OF-HOSPITAL DELIVERIES 6 (National Vital Statistics System, Series 21, No. 40, 1984).

 

33. See, e.g., INGRID VAN TUINEN & SIDNEY M. WOLFE, UNNECESSARY CESAREAN SECTIONS: HALTING A NATIONAL EPIDEMIC 36 (1992)(women with health insurance have more caesarean sections).

 

34. Id.

 

35. MARJORIE TEW, SAFER CHILDBIRTH? 11 (1990).

 

36. Judy B. Litoff, An Enduring Tradition: American Midwives in the Twentieth Century in THE AMERICAN MIDWlFE DEBATE 3, 17-19 (Judy B. Litoff ed., 1986).

 

37. Kloosterman, supra note 14, at 10; Marsden Wagner, Is Homebirth Dangerous?, BIRTH GAZETTE Fall 1989, at 16. See generally Rosenblatt, supra note 19. These issues must also be examined in light of the economic crises facing individuals and states today. The typical obstetrician's income in 1990 (after expenses and malpractice insurance but before taxes) was $202,430. DIANA KORTE & ROBERT SCAER, A GOOD BIRTH, A SAFE BIRTH 66 (3d rev. ed. 1992). That amount is more than four times the average income of practicing midwives. See id. These figures alone suggest that a transition to a primary care system with midwives as the central care provider could realize considerable cost savings.

 

38. British statistician Marjorie Tew explains that obsession with comparisons of intended places of delivery (home versus hospital) has continuously obstructed efforts to evaluate the actual methods of intranatal care. Tew, supra note 18, at 662. Home birth has acquired a bad name as a result of a misconstruction of facts. Tew explains that in England, high infant mortality rates started to occur in home settings as the one hundred percent hospitalization policy was implemented in the late 1960s. With most planned births occurring in the hospital, the high mortality rate of unplanned (and unattended) home births was attributed to their home setting. Id. It is reasonable to assume that the same holds true in the United States. See also Michel Odent, Planned Home Birth in Industrialized Countries, in TARGETS FOR HEALTH FOR ALL 5 (World Health Organization, EUR/ICP/MCH/126/4977B, 1991). In this report, Dr. Odent confirmed the safety of home birth with a well-trained attendant. Though prepared at the request of the WHO, the conclusions of the report do not represent official WHO policy. Dr. Marsden Wagner explains, however, that they are "consistent with the WHO recommendations found in Having a Baby in Europe, the Summary Report of the WHO Conference on Appropriate Technology for Birth, Fortleza, Brazil, 22-26 April, 1985 and the Summary Report of the WHO Symposium on Appropriate Technology Following Birth, Trieste, ltaly, October, 1986. "Michel Odent, Planned Home Birth in Industrialized Countries, 17 NAPSAC NEWS, Summer 1992, at 1.

 

39. RAYMOND G. DEVRIES, REGULATING BIRTH: MIDWIVES, MEDICINE, AND THE LAW 134 (1985). See also Janet Gallagher, Prenatal Invasions and Interventions: What 's Wrong with Fetal Rights ? 10 HARV. WOMEN'S L.J. 9 (1987).

 

40. Telephone Interview with John Wilson, Staff Director, Florida Senate Health Care Committee, Oct. 13, 1993). Similar legislation (Senate Bill 1066 and House Bill 1513) had been introduced in the Florida legislature in 1991. The Florida Medical Association (FMA) and the Florida Obstetric and Gynecologic Society wrote a joint letter to Florida Senators strongly opposing SB 1066 in March of 1991. The letter stated that "[l]lay midwives are not sufficiently qualified to consistently perform safe deliveries," noted that lay midwifery services were "inferior," and labeled the practice of lay midwifery the "deliberate endangering [of] the lives of mothers and infants . " Letter from Amy J. Young, Governmental Consultant to Florida State Senators (Mar. 29, 199I)(on file with author). A letter from B.L. Stalnaker, who supervises residents in obstetrics and gynecology in northwestern Florida, to a Florida Representative urged that the licensure of lay midwifery "must be soundly defeated if we are committed to the best possible health care for both mother and child." Letter from B.L. Stalnaker, Director, Northwest Florida Residency Program in Obstetrics and Gynecology, Inc., to Representative Bo Johnson, Florida House of Representatives (April 15, 199I)(on file with author). Immediately before the vote on HB 1513, Representative Ben Graber distributed on the floor of the Florida House of Representatives a handout listing emergency condition that can develop and suggesting that lay midwives would not be able to deal with these conditions. Memorandum from Representative Ben Graber, Florida House of Representatives (undated)(on file with author). What Representative Graber's handout does not mention is that he is a Board-certified obstetrician. See John P. Phelps, Clerk of the House, The Clerk's Manual 1990-1902: Compiled for Use by The House of Representatives of the State of Florida (February 1991)(on file with author). Heated debate continued through the passage of House Bill 553 in 1992. Telephone Interview with John Wilson, supra.

 

41. See generally SUSAN D. WILLIAMS, FLORlDA MEDICAL ASSOCIATION, RESPONSE TO FLORIDA SENATE QUESTIONNAIRE (1990)(on file with author). See also Letter from Young, supra note 40.

 

42. WILLIAMS, supra note 41, at 1. Ironically, one of the FMA's principal objections to allowing direct-entry midwives to practice was that they lacked "obstetrical backup"&emdash;a factor wholly within the control of the physicians, not the midwives. See Id.

 

43. Id.

 

44. See 1992 Fla. Sess. Law Serv. ch. 92-179 (West).

 

45. See EDMUND J. GRAVES, NATIONAL CTR. FOR HEALTH STATISTICS, ADVANCE DATA: EXPECTED PRINCIPAL SOURCE OF PAYMENT FOR HOSPITAL DISCHARGES: UNITED STATES, 1990, at 6 (No. 220, 1992).

 

46. Id.

 

47. Labor of Love, MIAMI HERALD, April 29, 1991, at Cl.

 

48. State Birth Centers Make Cheaper Stork, -GAINESVILLE SUN, July 25, 1990, at B6; Jane Tanner, Birth Site Alternative Is Reborn, FLA. TIMES UNION, July 25, 1990, at C6.

 

49. KORTE & SCAER, supra note 37, at 47, 48.

 

50. See, e.g., FL. STAT. ch.409. 908(1993)("midwives licensed under chapter 467 shall not receive Medicaid reimbursement for home deliveries conducted for Medicaid recipients").

 

51. NAT'L CENTER FOR HEALTH STAT., supra note 32, at 25.

 

52. Birth centers are non-hospital facilities organized to provide family-centered care for women judged to be at low risk of obstetrical complications. Judith P. Rooks et al., Outcomes of Care in Birth Centers, The National Birth Center Study, #321, NEW ENG. J. MED. 1804 (1989). At true birth centers, there is no induction and no augmentation of labor with oxytocin, no electronic fetal monitoring except for Doppler ultrasound&emdash;the sonic aid&emdash;there are no drugs for pain relief, except for local analgesia to suture tears in the perineum, very few episiotomies, and no operative deliveries. In many the only equipment is oxygen, and catheters for clearing a baby's airways when they are blocked.

SHEILA KITZINGER, HOMEBIRTH: THE ESSENTIAL GUIDE TO GIVING BIRTH OUTSIDE THE HOSPITAL 58 (1991). Some states have seen a need to clarify the legal definition of birth centers. For example, Florida defines a birth center as "any facility, institution or place, which is not an ambulatory surgical center or a hospital or in a hospital, in which births are planned to occur away from the mother's usual residence following a normal, uncomplicated, low-risk pregnancy." FLA. STAT. ANN. ch. 383.302 (Harrison Supp. 1991).

53. Eunice Ernst, Speech to the Healthy Start Coalition at The Governor's Healthy Start Retreat, in Tallahassee, Fla. (Aug. 25, 1991)(on file with author). Eunice "Kittie" Ernst, C.N.M., M.P.H., Director of the National Association of Childbearing Centers, participated in the national birth center study and reported this discrepancy, although the actual figures have not yet been reported. Id.

 

54. Robbie E. Davis-Floyd, The Role of Obstetrical Rituals in the Resolution of Cultural Anomaly, 31 SOC. MED. 175 (1990).

 

55. Id. at 176.

 

56. Id.

 

57 Id. at 179.

 

58. Id. at 187

 

59. Id.

 

60. Robbie E. Davis-Floyd, birth as an American rite of passage 277 (1992).

 

61. See, e.g., EDWARDS & WALDORF, supra note 6, at 115.

 

62. Id.

 

63. See Peter Hiam, Medical Malpractice Insurance, in 2 LEGAL PRINCIPLES AND PRACTICE IN OBSTETRICS AND GYNECOLOGY 30, 41 (Max Borten & Emanuel A. Friedman eds. 1990).

 

64. See ROTHMAN, supra, note 23, at 76 ("The only route to professional autonomy for midwives is the demedicalization of childbirth ...").

 

65. See Beatrijs Smulders & Astrid Limburg, Obstetrics and Midwives in the Netherlands, in THE MIDWIFE CHALLENGE 235 239 (Sheila Kitzinger ed., 1988)(in Netherlands, nurses work within medical hierarchy while midwives do not); Frances Cowper-Smith, Midwifery and Nursing: Apples and Oranges, 5 THE BIRTH GAZETTE 20, 20 (1989).

 

66. Lesley Page, The Midwife's Role in Modern Health Care in THE MIDWIFE CHALLENGE supra note 65, at 251, 254. The midwife may address complications that fall within her scope of practice and training or she may refer the pregnant woman to the appropriate practitioner. Id.

 

67. See ARMS supra note 20, at 155-56; Page, supra note 66, at 254-56.

 

68. Marsden G. Wagner, Infant Mortality in Europe: Implications for the United States: Statement to the National Commission to Prevent Infant Mortality 91 PUB. HEALTH POL'Y 473-48l(l988)(emphasis added). For a discussion of the antitrust implications of physician control of the practice of nurse-midwifery, see Brenda J. Glaser-Abrams, Comment, Hospital Privileges for Nurse-Midwives:An Examination Under Antitrust Law 33 AM. U. L. REV. 959 (1984). Barbara Safriet has noted the far-reaching consequences of the limitations placed on the practice of nurse-midwifery in the light of current efforts at health care reform. See Barbara J. Safriet, Health Care Dollars and Regulatory Sense: The Role of Advanced Practice Nursing , 9 YALE J. ON REG. 417 (1992).

 

69. SULLIVAN & WEITZ, supra, note 12, at 143.

 

70. KORTE & SCAER, supra note 37, at 95. The majority of obstetricians want to outlaw "planned home births" by direct entry midwives as well. SULLIVAN & WEITZ, supra note 12, at 136 (seventy-four of obstetricians plus sixty-three per cent of general practitioners). In fact, one study found that nearly half of obstetricians want to prevent obstetricians from "attending planned home births." Id. at 139.

 

Physicians have also succeeded in curtailing the activities of nurse-midwives by preventing their access to malpractice insurance.

 

[I]nsurance carriers, whose boards of directors are dominated by physicians, have ceased to offer independent certified nurse-midwives and licensed lay-midwives separate malpractice insurance premiums based on their risk status. Instead, they are offering insurance only at the rates available to obstetricians, who serve a much higher risk clientele and have a much higher frequency of being sued The effective unavailability of insurance has forced most free-standing birth centers operated by certified nurse-midwives to close, leaving only those run by physicians. ld at 147. For a detailed discussion of the malpractice insurance problem for nurse-midwives, see Gail A. Robinson, Comment, Midwifery and Malpractice Insurance: A Profession Fights for Survival, 134 U. PA. L. REV. 1001(1986). Robinson concluded that the ACNM should self-insure. See Id. at 1019-34. In December, 1985, shortly after her article was completed, the ACNM in fact adopted self-insurance. Id. at 1001.

 

71. Nurse-midwives cannot "conduct home births ... legally without the approval of a supervising physician." SULLIVAN & WERTZ, supra note 12, at 90. Obstetricians must sign certified nurse-midwives' protocols, which specify where the nurse-midwife intends to practice. Telephone Interview with Maggie McKeown, Certified Nurse-Midwife (Oct 12, 1993).

 

72. See Catherine M. Scholten. "On the Importance of the Obstetrick Art:" Changing Customs of Childbirth in America, 1760-1825, in WOMEN AND HEALTH IN AMERICA, 142, 142-5 (Judith Waltzer Leavitt ed. 1984); see generally RICHARD W. WERTZ AND DOROTHY C. WERTZ, LYING-IN: A HISTORY OF CHILDBIRTH IN AMERICA (1989).

 

73. WERTZ & WERTZ, supra note 72, at 2.

 

74. Scholton, supra note 72, at 147.

 

75. Id at 145; WERTZ & WERTZ, supra note 72, at 49.

 

76. Scholten supra note 72, at 146.

 

77. Id. at 146; WERTZ & WERTZ, supra note 72, at 29.

 

78. Scholten supra note 72, at 146-8. See also WERTZ & WERTZ, supra note 72, at 31-46.

 

79 WERTZ & WERTZ, supra note 72, at 44.

 

80. Scholten supra note 72, at 147-8.

 

81. Id at 148. Birth manuals after 1800 sought to discredit the midwife and the writings of doctors in these publications implied that "women who presumed to supervise births had overreached their proper position in life." WERTZ & WERTZ, supra note 72, at 56. No "true woman," they implied, would want to attain the skills and knowledge needed to deliver a child. Id. Women were likewise excluded from medical schools until 1847, when Elizabeth Blackwell was accepted by New York Medical College. After graduating at the top of her class she had to go to Paris and London to obtain clinical experience because no American hospital would allow her to practice. Id. at 59. One stated rationale was that hormonal changes occurring during menstruation resulted in a "condition" synonymous with temporary insanity. Id. at 57. Women were said to be incapable of mastering the languages, chemistry and mathematics that were prerequisites to medical training. One doctor wrote: "Their feelings are too powerful for the cool exercise of judgment in medical emergencies." WALTER CHANNING, REMARKS ON THE EMPLOYMENT OF FEMALES AS PRACTITIONERS IN MIDWIFERY 1 (1820), quoted in Scholten,supra note 72, at 148.

 

82. ROTHMAN, supra note 23, at 53.

 

83. Scholten,supra note 72, at 150.

 

84. Id.

 

85. Id. at 146-7.

 

86. Id. at 147.

 

87. See WERTZ & WERTZ, supra note 72, at 62-73 (doctors increasingly used medical procedures and instruments to establish the centrality of their role in childbirth).

 

88. Id. at 47; Litoff, supra note 36 at 3. The traditional midwife would have been completely wiped out in the United States if a large influx of immigrants hadn't arrived here from Europe beginning in the mid-nineteenth century. The immigrants brought their own midwives, who came from a long, well-respected tradition. These settlers were mostly in the northeast and midwest. The south also found many midwives still delivering poor blacks. Almost ninety per cent were delivered by midwives, many with little or no formal training. Id. at 3-4. Even while obstetrical care became prevalent in the United States, European countries saw midwifery continue to flourish and grow. WERTZ & WERTZ, supra note 72, at 71-72. Whereas American women were discouraged from becoming midwives and, even if interested, were forced to pay for their own training, European governments financially supported midwifery training programs and developed midwifery as an integral part of maternity care systems. Id. at 44-47. In France, for example, doctors were trained alongside student midwives in the principal maternity hospitals. French midwives supervised normal deliveries and taught the doctors normal birth. Id. at 63.

 

89. WERTZ & WERTZ, supra note 72, at 46-47. To the defenders of the midwives the doctors said the issues were safety and the proper place of women; they did not talk about their pecuniary motives. Id. at 56.

 

90. Litoff, supra note 36; at 5. This remains the case for infant mortality rates. See infra text accompanying note 160.

 

91. Frances E. Kobrin. The American Midwife Controversy: A Crisis of Professionalization, in WOMEN AND HEALTH IN AMERICA, supra note 72, at 318, 322. WERTZ & WERTZ, supra note 72, at 141.

 

92. JEAN DONNISON, MIDWIVES AND MEDICAL MEN: A HISTORY OF THE STRUGGLE FOR CONTROL OF CHILDBIRTH 40 (1988); WERTZ & WERTZ, supra note 72, at 58.

93. WERTZ & WERTZ, supra note 72, at 141.

 

94. Kobrin, supra note 91, at 322. See also WERTZ & WERTZ, supra note 72, at 47.

In 1910, approximately one-half of all births were attended by midwives. Litoff, supra note 36 at xi, but by 1939, 95% of urban women and half of all women gave birth in hospitals. WERTZ & WERTZ, supra note 72, at 133.

 

95. WERTZ & WERTZ, supra note 72, at 85. The nineteenth century emphasis on modesty discouraged clinical training, leaving only books to teach medical students how to deliver babies. Id. Some practicing doctors described the first attempt at developing a clinical experience for young medical students as "grossly offensive to morality and common decency." Id. at 86 (quoting HAROLD SPEERT, THE SLOANE HOSPITAL CHRONICLE 79 (1963)). One physician suggested that the students should learn all they needed to know about childbirth by watching domestic animals such as cows and sheep. Id. at 86. At this time, clinical experience had long been an integral part of training in European and other foreign countries. Id.

 

96. Litoff, supra, note 36, at 5.

 

97. Judy B. Litoff, Rediscovering the Midwife, in THE AMERICAN MIDWIFE DEBATE, supra note 36, at 27,28.

 

98. Judith P. Rooks, Nurse Midwifery: The Window is Wide Open, Am J. Nursing, Dec. 1990, at 31. An example of a nurse-midwifery service with extraordinarily low infant and maternal mortality rates was the Frontier Nursing Service, founded in Kentucky in 1925. See Nancy Schrom Dye, Mary Breckinridge, the Frontier Nursing Service, and the Introduction of Nurse-Midwifery in the United States, in WOMEN AND HEALTH IN AMERICA, supra note 72, at 327, 335, 337.

 

99. Litoff, supra note 97, at 8.

 

100. WERTZ & WERTZ, supra note 72, at 161.

 

101. Judith Walzer Leavitt & Whitney Watson, Down to Death's Door: Women's Perceptions of Childbirth in America, in WOMEN AND HEALTH IN AMERICA, supra note 72, at 155, 161.

 

102. Litoff, supra note 97, at 9.

 

103. WERTZ & WERTZ. supra note 72, at 121-22.

 

104. Id., at 126. In 1846, a Hungarian doctor named Semmelweis worked in a maternity hospital that used medical students in one ward and midwives in another. Id. at 121. The ward in which the medical students worked had a maternal mortality rate which exceeded the midwives' ward by 437 percent. Id. Drawing conclusions based on the practice of the physicians who performed frequent vaginal exams without hand washing between patients, Semmelweis validated the theory of the young Oliver Wendell Holmes. Sr. Dr. Holmes had been chastised and publicly ridiculed for his "outrageous" idea that doctors themselves were instrumental in causing the deadly fever. Id.

 

105. Id. at 128. Physician-caused disease is referred to as "iatrogenic."

 

106. Id. at 127-28.

 

107. Id. at 128.

 

108. Litoff, supra, note 36, at 12.

 

109. Dye, supra, note 98, at 339.

 

110. WERTZ & WERTZ, supra, note 12, at t66-67 . Wertz and Wertz offer the following description of hospital birth in the mid-twentieth century:

 

During the 1940s, 1950s, and 1960s, birth was the processing of a machine by machines and skilled technicians. Labor began in one room. The woman often received analgesics to reduce pain and scopolamine to remove the memory of pain. When she was ready to deliver, she was wheeled to the delivery room and placed on a table with "stirrups." Her arms were strapped down and her legs were strapped high in the air in a bent posture known as the lithotomy position because it was developed first for the removal of bladder stones (hence lithos [stone] and tennein [cut]). She was surrounded by medical machines, anesthesia equipment, resuscitation equipment for the baby, blood-transfusion equipment, and intravenous equipment, equipment to counteract the anesthesia, and equipment to monitor the fetal heart.

 

Many labors and deliveries alternated between being artificially slowed down and artificially speeded up. Some hospitals had regulations limiting the amount of time a woman was allowed to be in the delivery room. Also, one technique could often require the use of another. Anesthesia was counteracted by oxytocin; episiotomy required local anesthesia; forceps required anesthesia and episiotomy; the lithotomy position required episiotomy. Id, at 165.

 

111. For example, in 1957, a maternity nurse wrote to the Ladies Home Journal and called for an investigation of "cruelty in maternity wards." Letters, LADIES HOME JOURNAL (May 1958), quoted in WERTZ & WERTZ, supra note 72, at 170. Hundreds of women wrote to the Journal telling their stories of poor treatment in the hospitals. Many women complained that they were tied to delivery tables. One said that she felt "exactly like a trapped animal . " Id at 171, 170. Another woman reported that the delivery room was not "ready" when her baby was about to be born, so her legs were tied together to delay the birth. Id at 171.

 

112. Id. at 179.

 

113. Id.

 

114. Id. at 190-91.

 

115. Id. at l91.

 

116. Id.

 

117. Id. at 186.

 

118. Id. at 193. See also MARJORIE KARMEL, THANK YOU, DR. LAMAZE: A MOTHER'S EXPERIENCE IN PAINLESS CHILDBIRTH (1959). The Lamaze method promised no pain in childbirth if the woman practiced certain techniques ahead of time. WERTZ & WERTZ, supra note 72 at 193. Karmel was a strong advocate for the obstetrician. In the first training program that she developed, she wrote:

 

In all cases the woman should be encouraged to respect her own doctor's word as final.... It is most important to stress that her job and his are completely separate. He is responsible for her physical well being and that of her baby. She is responsible for controlling herself and her behavior.

 

ROTHMAN, supra note 23, at 90 (quoting ELISABETH BING AND MARJORIE KARMEL, A PRACTICAL TRAINING COURSE FOR THE PSYCHOPROPHYLACTIC METHOD OF PAINLESS CHILDBIRTH (1961)).

 

119. WERTZ & WERTZ, supra note 72, at 172.

 

120. See Id. at 194-95. The woman was taught that she could "be part of the team" and assist the doctor by following directions. The medical team's outlook was that the baby will "be delivered" with or without the mother's cooperation and the only role they offered her was that of "observer." She was "expected to be grateful to the . . staff for the wonderful job they had done." ROTHMAN, supra note 23, at 178.

 

The first Lamaze course that was developed in the U.S. incorporated perineal shaves, enemas, delivery tables (women were taught that it was all right "to request politely that only leg and not hand restraints be used"), and episiotomies. Id at 91. Lamaze instructors are taught that episiotomy is "a merciful aid to the mother. " Id.

 

Women who used the Lamaze method in the 1960s and 1970s may have felt that it gave them a type of "control." Id at 92. Nevertheless, the creators of the Lamaze program did not address such control issues as separation of mother and infant immediately after birth, and breastfeeding. Id. at 91. The husband participates in the training and is taught to assume the position of a "coach" who will give the emotional support that is often lacking in hospital care.

 

In essence, the method keeps the woman quiet by giving her a task to do, making being a 'good'&emdash;non-complaining, obedient, cooperative&emdash;patient the woman's primary goal.... [T]he [husband is] coopted into doing the [hospital] staff's work, moving the patient through the medical routines as smoothly as possible. Mother, coached by father, behaves herself, while the doctor delivers the baby."

 

Id. "The Lamaze training system is being changed radically at present. but there are many Lamaze instructors working within the hospital system in which their job depends on subordination and passive cooperation with obstetricians who make the rules." Letter from Sheila Kitzinger to author (Jan. 19, 1993) (on file with author).

 

121. WERTZ & WERTZ, supra note 72, at 194.

 

122 Id. at 195.

 

123 ROTHMAN supra note 23, at 94.

 

124. Kloosterman, supra, note 14 at 9. See also infra note 130. Nearly all the mortality excess for planned home births occurs in association with less experienced midwives. This is the conclusion of home birth midwives who compile their own outcomes over a period of time. Odent, supra note 38, at 6. See also Wayne F. Schramm, et al., Neonatal Mortality in Missouri Home Births, 1978-84, 77 AM. J. PUB. HEALTH 930 (1987). Schramm reports that physicians, nurse-midwives, and well-trained midwives recognized by the Missouri Midwife Association had far better outcome statistics than lesser trained attendants.

125. Kloosterman, supra note 14, at 9-10.

 

126. In Europe the term "direct entry midwife" is specific to those who enter a three-year formal midwifery training program directly without first becoming a nurse. The schools of midwifery existing in the United States today are not part of a university system, but are independent. Direct-entry midwifery training programs are considered "new" in the United States, but they are not actually new at all. The U.K., France, Belgium, the Netherlands, Germany, Austria, Denmark, ltaly and Japan&emdash;all of which have lower infant mortality rates than the United States&emdash;have always had direct-entry midwifery education. See infra text accompanying note 160 for infant mortality rates compared. Australia will open a direct-entry midwifery education program this year. New Zealand passed legislation one year ago which provided for direct-entry midwifery education. Doris Haire, Address at the American College of Obstetricians and Gynecologists, New York Chapter, The Future of Midwifery in New York State (Dec. 11, l990)(transcript on file with author). Haire is one of the "heroines" of American childbirth reform, according to Edwards and Waldorf. See EDWARDS & WALDORF, supra note 6, at 109-17.

 

127. The Maternity Center Association started the first nurse-midwifery training center in the U.S. in 1932. Kobrin, supra note 91, at 337. Originally midwives who were trained as nurses were a part of the National Organization for Public Health Nursing. Litoff, supra note 36, at 11. However, that organization disbanded in the 1950's, leaving nurse-midwives without the support of a professional organization. Neither the American Nurses Association (ANA) nor the National League of Nurses (NLN) established a special section for nurse-midwives. Accordingly, nurse-midwives who attended the 1954 ANA national convention laid the groundwork for what became the American College of Nurse-Midwives (ACNM) in 1969. Id. at 11-12. Since its inception, the ACNM has worked for the status of the Certified Nurse-Midwife (CNM) by standardizing training and certification and working for legal recognition.

 

128. Many nurse-midwives protest the banning of independent midwives. Some nurse-midwives joined independent midwives who attended the 1982 ACNM national convention to form the Midwives Alliance of North America (MANA). Id. at 18.

 

129. Pat Predmore, A Midwife Is . . ., 8 INT'L J. CHILDBIRTH EDUC. 32 (1993)(drafted and revised by the Interorganizational Workgroup on Midwifery Education in October, 1992). The Interorganizational Workgroup on Midwifery Education consists of six representatives each from the ACNM and MANA and six consumer advocates. Statement of the Interorganizational Workgroup on Midwifery Education (June 1991), on file with author).

 

130. See Irene H. Butter & Bonnie J. Kaye, State Laws and the Practice of Lay Midwifery, 78 AM. J. PUB. HEALTH. 1161, 1166 (1988).

 

131. Letter From Jo Anne Meyers-Ciecko to author (Mar. 16, 1993)(on file with author).

132. Baylor College of Medicine in Houston, Texas offers a fourteen-month program. Other certificate programs for nurses are offered in Kentucky, California, Pennsylvania, New York, and New Jersey. See Education Programs Accredited by the ,ACNM Division of Accreditation, 34 J. NURSE-MIDWIFERY 341 (1989).

 

133. Teresa Marsico, Testimony Before the American College of Obstetricians and Gynecologists District II, New York State, on "The Future of-Midwifery in New York State" (Dec. 11, l990)(on file with author). Teresa Marsico, CNM, MEd, is Vice President of the American College of Nurse-Midwives.

 

134. Id.

135. Telephone Interview with Jo-Anne Myers-Ciecko (Jan. 14, 1992). See also SEATTLE MIDWIFERY SCHOOL, MIDWIFERY AND NURSE-MIDWIFERY EDUCATION CATALOG 3 (Oct. 1991).

 

136. Id.

 

137. Three-year midwifery training programs exist in Alaska, Arizona, Florida, New Mexico, and Washington. A self-paced program with a minimum course completion time of two years exists in California. See Childbirth Education Teacher Training & Direct Entry Midwifery Programs, MIDWIFERY TODAY, Winter 1991-92, at 25-26, 43.

 

138 .See generally SEATTLE MIDWIFERY SCHOOL, supra note 135. The ACNM has recently authorized the Seattle Midwifery School to train nurse-midwives alongside the direct-entry students. Id.

 

139. Interview with Justine Clegg, Director, South Florida School of Midwifery (Dec. 4, 1992).

 

140. Helen Zia, Midwives: Talking About a Revolution, MS., Nov./Dec. 1990, at 91.

141. Ernest L. Boyer, Midwifery in America, A Profession Reaffirmed, 35. J. NURSE-MIDWIFERY 214, 216 (1990).

 

142. Id . at 218.

 

143. Id.

 

144. See also Judith P. Rooks, Nurse-Midwifery: The Window Is Wide Open, AM. J NURSING, Dec. l990, at 30, 35-36.

 

145. Marsico, supra note 133. The comparison was discussed at a summer 1990 meeting of a Seminar on Professional Midwifery Education sponsored by the Carnegie Foundation for the Advancement of Teaching. Id.

 

146. See Boston Women's Health Book Collective et al., Childbearing Policy Within a National Health Program: An Evolving Consensus for New Directions, at 16 (hereinafter Boston Collective)(unpublished manuscript on file with author). Significant differences remain. For example, factions differ as to the degree of their acceptance of physician supervision. In January, 1978, the ACNM defined midwifery as the "independent management of . . . normal newborns and women . . . occurring within a health care system." EDUCATION COMMITTEE, AMERICAN COLLEGE OF NURSE-MIDWIVES, CORE COMPETENCIES IN NURSE-MIDWIFERY app. 5 (1985). Nevertheless, the joint statement of the ACNM and the American College of Obstetricians and Gynecologists (ACOG) makes it clear that theACNM nurse-midwives perceive their "manager" role as subordinate to the management of a physician:

 

The American College of Obstetricians and Gynecologists and the American College of Nurse-Midwives believe that the appropriate practice of the certified nurse-midwife includes the participation and involvement of the obstetrician/gynecologist as mutually agreed upon in written medical guideline/protocols.

 

Id. This document requires the nurse-midwife to approach the obstetrician periodically to update the guidelines and protocols. It states that the interdependent practice of the two practitioners together "enhances the quality of care." But the entity in control is clear. The midwife is allowed to provide care without the physical presence of the physician. The joint statement also identifies the nurse-midwife as part of the obstetrical team with the understanding that the obstetrician/gynecologist is the director. Id.

 

147. Rooks, supra note 144, at 35.

 

148. NAT'L CENTER FOR HEALTH STAT., supra note 32, at 7. Ina May Gaskin, an internationally known midwife from Tennessee, has been speaking out publicly for nurse-midwives around the country who feel sad and angry at the medical and political obstructions that prevent them from practicing their profession. Gaskin writes that "[o]no would think that an education that can cost as much as $75.000 and maybe six years of your life ought to put you on a footing where you would not have to be under the thumb of another profession to practice yours." Ina May Gaskin, Editorial, BIRTH GAZETTE, Spring 1992, at 2.

 

149. See ROTHMAN, supra note 23, at 38.

 

150. Id. at 184.

 

151. Kloosterman, supra note 14, at 10.

 

152. Our society accepts the obstetrician's image of pregnancy as the "facts," or the "truth." ROTHMAN, supra note 23, at 33.

 

153. David Stewart & Bill Zukosky, Peckman v. Thompson: The Malfeasance of Medicine, NAPSAC NEWS, Winter-Spring 1989-1990, at 1, 3; see also KITZINGER, supra note 52, at 72. European midwife trainees have to gain substantial experience in performing births prior to graduation. ANN OAKLEY & SUSANNE HOUD, HELPERS IN CHILDBIRTH: MIDWIFERY TODAY 41 (1990). See infra text accompanying note 157 for requirements for European midwives.

 

154. Letter from Elizabeth M. Bear, CNM, PhD, FAAN, former past President, American College of Nurse Midwives Associate Professor & Coordinator of Nurse-Midwifery Education, Medical University of South Carolina to author). Nurse-midwifery programs must have the capacity to offer trainees the opportunity to manage twenty births during training. DIVISION OF ACCREDITATION, AMERICAN COLLEGE OF NURSE-MIDWIVES, CRITERIA FOR ACCREDITATION OF BASIC CERTIFICATE AND BASIC GRADUATE NURSE-MIDWIFERY EDUCATION PROGRAMS Vll(C)(2)(c)(1988). This means a nurse-midwife can graduate after managing twenty or fewer births if she is deemed to have mastered certain core competencies.

 

155. Letter from Frontier Nursing School to author (Dec. 8, 1992)(on file with author).

156. WASH. REV. CODE ANN. §18.50.Q40(2)(d)(West 1989); Act of Apr. 8, 1992, 1992 Fla. Sess. Law Serv. ch. 92-179 (codified as amended at FLA. STAT. § 467.009(4) (1992)).

157. Council Directive 80/155, supra note 9, at 11-12. Less experience with assisting birth has been related to higher mortality. See supra note 124.

 

158. OAKLEY & HOUD, supra note 153, at 116.

 

159. "Medicine must emphasize the disease-like nature of pregnancy, its 'riskiness,' in order to justify medical management." ROTHMAN, supra note 23, at 156. "Normal pregnancy" then becomes an oxymoron within the framework of medical discourse. Id. at 133. Although the physician may discuss pregnancy in terms of its being "normal and healthy," he or she will always place the patient in a "risk" category. A perfectly normal, healthy pregnant woman is classified as "low risk." The doctor at his or her discretion may label a woman's pregnancy "high risk" due to her age or the number of children that she has borne previously. Id. at 132.

 

160. It has been estimated that only three to five percent of pregnant women require obstetrical care. See supra text accompanying notes 29-30. This estimate, based on European data, differs from the estimates of American physicians. An American training text for obstetricians claims that medical intervention is required in ten percent of all cases. STEVEN L. CLARK, ET AL., CRITICAL CARE OBSTETRICS (2d ed. 1991) .

 

161. OAKLEY & HOUD, supra note 153, at 121.

 

162. Myron E. Wegman, Annual Summary of Vital Statistics- 1990., 88 PEDIATRICS 1081, 109l.

 

163. Marsden Wagner, Infant Mortality In Europe: Implications for the United States, ` J. PUB. HEALTH POL'Y, Winter/Spring, 1988, at 473, 480; Peggy O'Mara, Look How Far We've Come, 1990 MOTHERING 7.

 

164. ROTHMAN, supra note 23, at 249.

165. Id. at 34, 174.

 

166. Robin Mole, Possible Hazards of Imaging and Doppler (Ultrasound in Obstetrics, BIRTH. Special Supp., Dec. 1986, at 23, 25-29.

 

167. DONNISON, supra note 92, at 192.

 

168. ROTHMAN, supra note 23, at 47.

 

169. Although some monitors work by telemetry, allowing the woman to walk around, the most extensively used fetal heart monitor requires the woman to lie down during a time that she should be moving about and avoiding a recumbent position to facilitate the birth. See KITZINGER supra note 52, at 26.

 

170. Id. at 25. Monitor print-outs often divert the attention of hospital staff from attending to the physical and emotional needs of the laboring woman.

 

171. ROTHMAN, supra note 23, at 47. Dr. Mendelsohn explains why electronic monitors may not be any more useful than traditional methods of monitoring the fetus:

External fetal monitors consist of two bands that are strapped around your abdomen and connected to a monitoring unit that records the device's findings on tape. One band is pressure sensitive and records the strength and frequency of your contractions. The other employs ultrasound to determine the condition of the fetus. In most hospitals, doctors use fetal monitors routinely, although one study of 70,000 pregnancies found no difference in outcome between monitored and unmonitored patients, and other studies have shown that monitoring results in an increase in infant mortality among the patients monitored. This suggests that, at best, monitoring does no good, and at worst it may do harm.

 

ROBERT S. MENDELSOHN, How TO RAISE A HEALTHY CHILD IN SPITE OF YOUR DOCTOR 40 (1984).

 

172. DONNISON, supra note 92, at 192. The use of fetal monitors involves other risks as well. Both infant and mother are exposed to the risk of infection when the membranes of the sac surrounding the infant are ruptured. Artificial rupture of the membranes is required for inserting an electrode, by clip or screw, into the fetal scalp. Concerns have arisen that an H.I.V. positive mother may pass the infection to her baby when there is a laceration of the baby's tissue. Letter from Sheila Kitzinger to author (Jan. 19, 1993)(on file with author).

 

173. ROTHMAN, supra note 23, at 45. The NCHSR report assessed the technique's safety and cost effectiveness, and stated that the uncertain benefits and the known costs and risks do not seem to justify the technique's widespread use. Id. at 46.

 

174. Doris Haire, Drugs in Labor and Birth. CHILDBIRTH EDUCATOR, Spring 1987, at l, 3, 7. When the FDA approves a drug for use, it does not mean that the agency guarantees the drug as safe for the fetus. It means only that the FDA has determined the benefits of the drug to outweigh its risks. Id. at 4.

 

175. DONNISON, supra note 92, at 193.

 

176. Tew, supra note 18, at 667 (citing Gibbs, supra note 26, citation omitted). Thus, uncomplicated post-maturity should not necessarily be considered an indication for induction.

 

177. Haire, supra note 174, at 5. Meperidine is frequently used along with a drug called promethazine (Phenergan). This drug relieves nausea and vomiting caused by powerful pain relievers such as meperidine but is not without risk: "Research has shown that promethazine markedly impairs platelet aggregation in the fetus and newborn, a condition that can cause bleeding within the brain of the fetus without a similar effect on the mother." Id. at 6.

 

178. MARTHA ANN AUVENSHINE & MARTHA GUNTHER ENRlQUEZ, COMPREHENSIVE MATERNITY NURSING: PERINATAL AND WOMEN'S HEALTH 389 (2d ed. 1990); Haire, supra note 174, at 6. Stadol is far more powerful than demerol and must be administered with extreme caution. Nubain has been found to concentrate more in the fetal circulation than in the mother's. Id.

 

179. DONNISON, supra note 92, at 194.

 

180. Haire, supra, note 174, at 7.

 

181. See Carol M. Sepkoski et al., The Effects of Maternal Epidural Anesthesia on Neonatal Behavior During the First Month, 1992, DEVELOPMENTAL MED. AND CHILD NEUROLOGY 1072, 1077. A new study indicates that bupivacaine-medicated infants are less alert and exhibit disoriented behavior for at least the first month of life. Id.

182. DONNISON, supra note 92, at 193, 194.

 

183. Rosenblatt, supra note 19, at 159-62. According to the U.S. Office of Technology Assessment, approximately 20% of illnesses result from medical treatment. OAKLEY & HOUD, supra note 153, at 86.

 

184. Earl UbelI, Are Births as Safe as They Could Be? PARADE, Feb. 7, 1993, at 9 (citing CHALMERS ET AL., A GUIDE TO EFFECTIVE CARE IN PREGNANCY AND CHILDBIRTH).

 

185. Id. at 10.

 

186. Paul Sugarman, Plaintiff's Position, in 2 LEGAL PRINCIPLES AND PRACTICE IN OBSTETRICS AND GYNECOLOGY,supra note 63, at 237, 327-328.

 

187. Id. at 328.

 

188. Robert Mendelsohn, Address at Summit, National Alliance of Parents and Professionals for Safe Alternatives in Childbirth [NAPSAC][hereinafter Mendelsohn, NAPSAC Address](l986)(transcript on file with author). The late Dr. Robert Mendelsohn was a pediatrician, author, and former Chairman of the Medical Licensing Committee in Illinois.

 

189. NAT'L CENTER FOR HEALTH STAT., U.S. DEPT. OF HEALTH AND HUMAN SERVS., VITAL AND HEALTH STATISTICS, DISCHARGE SURVEY: ANNUAL SUMMARY 1990 (June 1992). Episiotomy is the cutting of the perineum to enlarge the vaginal opening.

 

190. Id. at 9.

 

191. DONNISON, supra note 92, at 193.

 

192. Kim Painter, Episiotomy Often Unneeded, USA TODAY, July 2-5, 1992, at Al.

193. ROTHMAN, supra note 23, at 58.

 

194. DONNISON, supra note 92, at 194.

 

I95. NAT'L CENTER FOR HEALTH STAT., supra note 189, at 9.

 

196. Wagner, supra note 68, at 479. See generally LYNN SILVER & SIDNEY WOLFE, UNNECESSARY CESAREAN SECTIONS: HOW TO CURE A NATIONAL EPIDEMIC (1989). Caesarean sections are far more profitable than vaginal deliveries for both hospitals and physicians. The average fee in the United States for a vaginal delivery in 1989 was $4334 ($1492 for physician; $2842 for hospital) while the fee for a caesarean section averaged $7186 ($20S3 for physician; $5133 for hospital). VAN TUINEN & WOLFE, supra note 33, at 39.

 

197. See supra text accompanying note 187 (maternal risks). "The maternal mortality rate from sections is one per 2,000 as compared to the maternal mortality rate from vaginal births which is one to 50,000." Mendelsohn, NAPSAC Address, supra note 188. "[C]esarean sections] have no advantage for infants and may indeed cause harm.... While [they] may protect extremely large infants ... from trauma, small infants in breech position, or infants with other abnormal positions in the uterus, for most other groups, no advantage has been demonstrated.... [Infants up to 8 lb. 6 oz.] in breech position can be delivered with near equal safety by either route, although this area is still controversial." SILVER & WOLFE supra note 196, at 14. There is no evidence that the performance of unnecessary caesarean sections lessens the legal risk for an obstetrician. See Id. at 24.

 

198. SILVER & WOLFE, supra note 196, at 12; see also Valerie Bhatta, University Doctors Hold Line On Cesareans, FLORIDA TIMES UNION, Nov. 25, 1990, at B1.

 

199. SILVER & WOLFE, supra note 196, at 13.

 

200. Korte, supra note 4, at 85.

 

201. DONNISON, supra note, 92, at 194.

 

202. Hiam, supra note 63, at 40. There is no evidence that the performance of unnecessary caesarean sections lessens the legal risk for an obstetrician. See SILVER & WOLFE supra note 196, at 24. In recent years, in fact, women have filed a number of lawsuits against obstetricians for performing unnecessary caesareans. Id. Of course, the high number of lawsuits increases malpractice rates, the cost of which is passed on to the consumer.

 

203. Study of Respiratory Distress Syndrome in Newborns Revealed, CHI. TRIB., Feb. 10, 1982, at 1.

 

204. NATIONAL COALITION. TO PREVENT INFANT MORTALITY, TROUBLING TRENDS: THE HEALTH OF AMERICA'S NEXT GENERATION 41 (1990).

 

205. SILVER & WOLFE, supra note 196, at 14.

 

206. Ubell, supra note 184, at 11.

 

207. Richard D. Burt, Evaluating the Risks of Cesarean Section: Low Apgar Score in Repeat C-Section and Vaginal Deliveries, 78 AM. J. PUB. HEALTH 1312, 1313 (1988). Apgar scores are an index of the well-being of the baby immediately after the birth, in which low scores are a sign of abnormal function.

 

208. Wagner, supra note 68, at 479-80.

 

209. `Bhatta, supra note 198, at Bl.

 

210. VAN TUINEN & WOLFE, supra note 33 at i.

 

211. Id. at 3.

 

212. Id. at i.

 

213. Wagner, supra note 68, at 479-80.

214. Gallagher, supra note 39, at 51.

215. Id. at 3.

216. Frances C. Notzon, International Differences in the Use of Obstetrical Interventions, 263 J. AM. MED. ASS'N. 3286, 3287 (1990).

217. Anne Scupholme et al., A Birth Center Affiliated With The Tertiary Care Center: Comparison of Outcomes. 67 OBSTETRICS & GYNECOLOGY 598, 601 (1986) (fifty-seven percent fewer); Gigliola Baruffi et al .,A Study of Pregnancy Outcomes in a Maternity Center and a Tertiary Care Hospital, 74 AM. J. PUB. HEALTH 973, 976-77 (1984) (seventy-one percent fewer).

 

218. See Marsden Wagner, Is Homebirth Dangerous?, THE BIRTH GAZETTE, Fall 1989, at 16-17. Wagner writes about Europe, but the theory is applicable to the United States. "There is, in fact," Wagner says, "no good scientific evidence that homebirth (or birth in a small birth clinic) is more dangerous than hospital birth ...." Id at 16. Statistics indicating that as hospital births increase, overall mortality decreases are misleading. They are due, Wagner points out, to the fact that currently, most out-of-hospital births are unplanned and accidental; most of these births are premature, and thus, have a high infant mortality rate. Id. Wagner calls for a more scientific investigation of mortality associated with planned homebirths versus that associated with hospital births. Id. at 16-17.

 

219. Lola Jean Kozak, Surgical and Nonsurgical Procedures Associated with Hospital Delivery in the United States: 1980-87 16 BIRTH 209, 212 (1989).

 

220. In fact, studies suggest that reduced use of technology increases benefits to women because they avoid the rush, discomfort, and disruption imposed by these procedures. Boston Collective, supra note 146, at 12.

 

221. Rooks, supra note 52, at 31.

 

222. Andrew H. Malcolm. Fear of Malpractice Suits Leading Some Doctors to Quit Obstetrics. PRACTICING MIDWIFE 23, 24 (1985).

 

223. Id. at 24.

 

224. See James F. Holzer, Informed Consent in LEGAL PRINCIPLES AND PRACTICE IN OBSTETRICS AND GYNECOLOGY, supra note 63, at 6 (1990).

 

225. Rooks, supra note 52, at 32.

 

226. OAKLEY & HOUD, supra note 153, at 55 (describing study by H.B. Perry, citation omitted).

 

227. Kloosterman, supra note 14, at 10.

 

228. Wagner, supra note 68, at 481.

 

229. Korte, supra note 4, at 86.

 

230. See ROTHMAN, supra note 23, at 42; Kloosterman, supra note 14, at 9; Wagner, supra note 218, at l6.

 

231. See Wagner, supra note 68, at 481-83. OAKLEY & HOUD, supra note 153, at 100. See also ANN OAKLEY, THE CAPTURED WOMB: A HISTORY OF THE MEDICAL CARE OF PREGNANT WOMEN 75 (1984); C. Arden Miller, Infant Mortality, MOTHERING, Summer }988, at 62, 64; Page, supra note 66, at 255.

 

232. Wagner supra note 68 at 473.

 

233. Page, supra note 66, at 257.

 

234. ROTHMAN, supra note 23, at 35.

 

235. KITZINGER, supra note 52, at 25. Dr. Michel Odent explains that the nervous system and the endocrine system are inextricably linked. According to Odent, new research indicates that the neo-cortex of the brain regulates hormones that control the process of birth. This is why privacy in a familiar environment at the time of birth positively influences the process of labor. Michel Odent, Birth And Beyond, 64-66. (Mar. 1993)(unpublished anthology distributed on 1993 U.S. Speaking Tour, on file with author)(excerpts from 1989 article: Dr. Michel Odent, What is Health? Towards an Ontogenic Definition, 1989 INT. J. PRENATAL & PERINATAL STUDIES 47).

236. See Boston Collective, supra note 146, at 9.

 

237. ROTHMAN, supra note 23, at 160.

 

238. Midwifery care gets high marks in communication. A 1985 U.S. Office of Technology Assessment study revealed that care provided by midwives was characterized by better communication and counseling skills than those provided by doctors. OAKLEY & HOUD, supra note 153 at 55. Subsequent to the delivery, all the women in this study who had been attended by midwives said that they would not have preferred a doctor for the delivery. Some of the women who had been delivered by doctors felt afterwards that they would have preferred midwifery care. Id.

 

239. If the pregnancy is abnormal, the midwife refers the pregnant woman to an obstetrician.

 

240. ROTHMAN, supra note 23 at 151.

 

241. Id. at 155.

 

242. Id. at 225.

 

243. Id. at 262.

 

244. Id. at 261.

 

245. DEBORAH A. SULLIVAN AND ROSE WEITZ, LABOR PAINS 71 (1988).

246. ROTHMAN, supra note 23 at 258. Ina May Gaskin describes sexual intercourse as a "time-honored method" of inducing labor. Ina May Gaskin, Prostaglandins: A Time-honored Method of Labor Induction, THE BIRTH GAZETTE, Spring 1991, at 24, 24. In fact, research indicates that the prostaglandins present in seminal fluid can be instrumental in inducing uterine contractions. Id.

 

247. ROTHMAN, supra note 23 at 236.

 

248. Id. at 237.

 

249. In the hospital a laboring woman cannot have food or drinks. She is prepared for anesthesia. even for a planned "natural" birth. Id.

250. Id. at 238.

 

251. KITZINGER, supra note 52, at 142.

 

252. ROTHMAN, supra note 23 at 251.

 

253. Id. at 252.

 

254. In the hospital setting, the end of the second stage is precisely when she is moved. She goes from the labor room to a gurney and finally onto a table in the delivery suite. Id. at 266.

 

255. KITZINGER, supra note 52, at 143-48.

 

256. Id. at 150-52.

 

257. PRITCHARD ET AL., supra note 22, at 337. The natural length of labor is of course physiologically determined, but in the medical model it is subject to medical control. See supra notes 22-24 and accompanying text (describing the changes over time of what physicians describe as the "normal" length of labor). In only three decades, physicians determined that there was "a need" to shorten what was considered "normal." ROTHMAN, supra note 23, at 263.

 

258. But the midwife must "look good" on paper and, for the safe delivery of the woman, may not list the beginning of the second stage as soon as a hospital nurse might. Cervical dilatation is an "objective" measure but competent birth attendants may disagree on when it starts. The midwife gives the mother the benefit of the doubt by not calling it "second stage" until all of the cervical rim is out of the way of the emerging baby. ROTHMAN, supra note 23, at 266, 267.

 

259. KITZINGER, supra note 52, at 156.

 

260. ROTHMAN, supra note 23, at 240.

 

261. Id. at 243.

 

262. KITZINGER, supra note 52, at 159.

 

263. In emergencies, midwives administer a life-saving drug by intramuscular injection that stops the bleeding. Id. at 160-62.

 

264. Id. at 163.

 

265. Boston Collective, supra note 146, at 9.

 

266. Peckmann v. Thompson, 745 F. Supp. 1388 (C.D. Ill. 1990); Bowman v. Municipal Ct., 556 p. 2nd 1081 (Cal. 1977). See infra notes 291-99 and accompanying text for a discussion of these cases.

 

267. OAKLEY & HOUD, supra note 153, at 15.

 

268. Boyer, supra note 141, at 218.

 

269. John Kennell et al., Continuous Emotional Support During Labor in a US Hospital: A Randomized Controlled Trial, 625 J. AM. MED. ASS'N. 2197 (1991).

270. Id.

271. Id. at 2201.

 

272. Wagner, supra note 68, at 473.

 

273. Id. at 474-84.

 

274. Marjorie Tew & S.M.I. Damstra-Wijmenga, Safest Birth Attendants: Recent Dutch Evidence, 7 MIDWIFERY 55, 62 (1991). See also Roger Rosenblatt et al,. Is Obstetrics Safe in a Small Hospital? , 1985 LANCET 429.

 

275. Tew & Damstra-Wijmenga, supra note 274 at 59.

 

276. Id. Other recent journal articles have further substantiated the safety of midwife-attended birth. A 1990 article in the Journal of the American Medical Association reported that a system of care utilizing independent midwives was "feasible" and "worthy of consideration." Pieter Treffers, Home Births and Minimal Medical Interventions, 264 J. AM. MED. ASS'N. 2203, 2208 (1990). The study too place in the Netherlands, where over one-third of all births occur at home, and one third are supervised in the hospital by a midwife who is not under the control of an obstetrician. Odent, supra note 235, at 19.

 

A different study of 1001 midwife-attended home births in Toronto that occurred between 1983 and 1988 found only one neonatal mortality, with only 3.4% of births requiring Caesarean sections. Holliday Tyson, Outcomes of 1001 Midwife-attended Home Births in Toronto, 1983-1988, 18 BIRTH 14 (1991). ("Neonatal" mortality refers to deaths that occurred from birth up to 28 days of life.)

 

In yet another study, 1,707 home births attended by apprentice-trained midwives in a Tennessee community were examined. The author concluded that home birth with non-nurse midwives can be as safe as conventional hospital delivery for low-risk pregnancies. A. Mark Durand, The Safety of Home Birth: The Farm Study, 82 AM. J. PUB. HEALTH 450 (1992).

 

In 1989, the New England Journal of Medicine reported birth outcomes for 11,814 women with nurse-midwives as the primary attendants. The neonatal mortality rate was 1.3 per 1000 births, and only 4.4% of the women had Caesarean sections. The authors concluded that birth centers offer a safe and acceptable alternative to hospitals for normal pregnancies. Rooks et al., supra note 52, at 1804.

 

277. American College of Obstetricians & Gynecologists, Health Department Data Shows Danger of Home Births (Jan. 4, 1978)(press release announcing results of study) [hereinafter ACOG Press Release]. The medical lobby used results from this study during the 1991 Florida legislative session to "prove" the dangers of home birth so that the bill to allow training schools for direct-entry midwives would fail. See Letter from Amy J. Young, lobbyist for Florida Medical Association and Florida Obstetric and Gynecologic Society, to members of Florida Senate (Mar. 29, 1991)(on file with author).

278. Sociologist Raymond DeVries points out that the study was misleading as well as unscientific. DEVRIES, supra note 39, at 134. In one paragraph of its press release, the ACOG claimed it had "received reports" from forty-seven states, but in another paragraph it said that its data was culled from reports from eleven state health departments. ACOG Press Release supra note 277, at 1. See also DEVRIES supra note 39, at 134.

 

279. ROTHMAN, supra note 23, at 43, 44; Mehl, supra note 23, at 186-99.

 

280. MD. CODE ANN., HEALTH OCC., § 8-601 (1991); OHIO REV. CODE ANN. § 4723.41 (Anderson Supp. 1991); W. VA. CODE § 30-15-2 (1986); WIS. STAT. ANN. § 441.15 (West 1988).

 

281. ILL. ANN. STAT. ch. 111, para. 4400-49 (Smith-Hurd Supp. 1992); NEB. REV. STAT. §§ 71-1, 102, 103(15) (1986 & Supp. 1991); D.C. CODE ANN. 2-3301.2(7) (1988).

 

282. HAW. REV. STAT. § 321-394 (Supp. 1991); IND. CODE ANN. § 25-22.5-5-5 (West 1991); N.Y. PUB. HEALTH LAW § 2560 (McKinney 1985); N.C. GEN. STAT. § 90-178.5 (1991); VA. CODE ANN. § 32.1-147 (Michie 1992).

 

283. ALA. CODE §§ 34-19-2 to -3 (1993) (requiring health department permits, issued only to nurse-midwives); DEL. CODE. ANN. tit. 16, § 122 (1992) (requiring permits from State Board of Health, issued only to CNM); GA. CODE ANN. § 31-26-2 (1993) (requiring certification by the Department of Human Resources, issued only to CNM); KY. REV. STAT. ANN. § 211.180 (BALDWIN 1993) (requiring permits issued only to nurse-midwives by the Cabinet for Human Resources); NJ. REV. STAT. 45:10-2 (1992) (requiring license issued only to CNM by State Board of Medical Examiners); 63 PA. CONS. STAT. § 422.35 (1993) (requiring license given only to CNM by the State Board of Medicine); R.l. GEN. LAWS § 23-13-9 (1992) (requiring license issued by the State Director of Health only to CNM). See also MIDWIFERY AND THE LAW 11, 17, 19, 25, 37, 44, 45 (Ellie Becker et al. eds., 1990).

 

284. 1977-78 Op. Att'y Gen. Iowa 371(1978).

 

285. COLO. REV. STAT. §§ 12-36-106 (I)(f), 12-37-101 et seq. (providing for licensing of direct entry midwives who have passed an examination designed by an independent organization with authority on the practice of midwifery); FLA. STAT. chs. 467.002-209 (1992) (providing for departmental approval of three-year midwifery programs in the state and requiring clients of direct entry midwives to see a physician twice during the pregnancy); LA. REV. STAT. ANN. §§ 37:3240-3248 (West 1988) (establishing licensure by the State Board of Medical Examiners); MONT. CODE ANN. §§ 37-3-103(1)(p), 37-27-101 et seq. (1991) (specifically exempting direct-entry midwifery from medical practice, statutorily recognizing the right of Montanans to give birth where and with whom they choose, and providing a "Direct-Entry Midwifery Licensing Act" where midwives must advise clients to consult with a physician or CNM twice during the pregnancy); TEX. HEALTH & SAFETY CODE ANN. § 4512i (West Supp. 1993) (establishing a midwifery board reporting to the Texas Board of Health and requiring disclosure by midwives of their credentials to clients); WASH. REV. CODE ANN. § 18.50 et seq. (West 1989) (providing protocols and autonomy for direct entry midwives). On September 9, 1993, the California General Assembly passed a bill that requires the Medical Board of California to issue licenses to direct entry midwives qualified as provided in the law. S.B. 350, Calif. 1993-94 Regular Sess. At the time of publication of this article, the bill had not yet been signed into law.

 

For a survey of the fifty states' regulation of lay midwifery as of March 1, 1986, see Charles Wolfson, Midwives and Home Birth: Social, Medical. and Legal Perspectives, 37 HASTINGS L.J. 909, 957-67 (1986). Wolfson also offers a model statute allowing lay midwifery and homebirth. Id. at 968-76.

 

286. ALASKA STAT. § 18.05.040 (1991) (providing that lay midwifery be regulated by Dept. of Health and Social Services); ARIZ. REV. STAT. ANN. § 36-755 (Supp. 1992) (providing that Department of Public Health and Services define "the duties and limitations of the practice of midwifery"); ARK. CODE ANN. §17-85-102 (Michie 1992) (requiring that State Board of Health license lay midwives); MINN. STAT. ANN. §148.31 (West Supp. 1993) (requiring that midwives be licensed by the state board of medical practice); Mo. ANN. STAT. § 334.120 (Vernon 1989) (providing that midwives be licensed by the State Board of Registration for the Healing Arts); N.H. REV. STAT. ANN § 326-D:2-4 (1984) (requiring the Department of Public Health Services to use information from "advisory committee for the practice of lay midwifery" to establish midwifery qualifications and a midwifery certification process); N.M. STAT. ANN. §§ 241-3 R. (Michie 1992) (requiring that the health services division of the health and environment department regulate midwifery); 1993 OR. LAWS ch. 362 (authorizing Office of Medical Assistance Programs to certify direct-entry midwives; S.C. CODE ANN. § 44-89-30 (Law. Co-op. Supp. 1991) (requiring that the Department of Health and Environmental Control license midwives).

 

287. CONN. GEN. STAT. § 20-9 (1991); IDAHO CODE § 54-1803 (Supp. 1993); KAN. STAT. ANN. § 65-2869 (1985); ME. REV. STAT. ANN. tit. 32, § 3270 (West 1988); N.D. CENT. CODE § 43-17-01 (1978); OKLA. STAT. ANN. tit. 59, § 492 (West 1993); S.D. CODIFIED LAWS ANN. § 36-4-9 (1992); TENN. CODE ANN. § 63~204 (Supp. 1992); VT. STAT. ANN. tit. 26, § 1311 (1989); WYO. STAT. § 22-26-102 (1987). These states limit the scope of "the practice of medicine" to the treatment of disease, ailments, injuries, deformities and abnormal physical or mental conditions.

 

288. MISS. CODE ANN. § 73-25-33 (1989).

 

289. MICH. COMP. LAWS ANN. § 333.17001(d) (West Supp. I990; NEV. REV. STAT. ANN. § 630.020 (Michie 1992); UTAH CODE ANN. § 58-12-28 (Supp. 1993). In defining "the practice of medicine" these states have included treatment of "any condition of a human being, physical or mental." This addition could include normal human conditions such as pregnancy.

 

290. WASH. REV. CODE ANN. § 18 50 et seq. (West 1991).

 

291. Bowland v. Municipal Ct. 556 P. 2d 1081, 1089 (Cal. 1977). For a discussion of the arguments that have been advanced in favor of a woman's privacy right to choose how to give birth, see generally Barbara A. McKormick, Note, Childbearing and Nurse-Midwifery: A Woman's Right to Choose, 58 N,Y.U.L. REV. 661(1983). See also Kerry E. Reilly, Note Midwifery in America: The Need for Uniform and Modernized State Law, 20 SUFFOLK U.L. REV. 1117, 1139-42 (1986).

 

292. Bowland, 556 P. 2d at 1089 (citing Roe v. Wade, 410 U.S. 113, IS2-S3 (1973)).

293. Id. In 1975, a federal court similarly found that a father had no privacy right to be present in a hospital delivery room. See Fitzgerald v. Portet Memorial Hosp., S23 F.2d 716 (7th Cir. 197S), cert. denied, 42S U.S. 916 (1976).

 

294. Bowland, SS6 P. 2d at 1089.

 

295. Id.

 

296. 745 F. Supp. 1388 (C.D. III 1990).

 

297. The Illinois Medical Practice Act of 1987 reads:

 

If a person holds himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings; or suggests, recommends or prescribes any form of treatment for the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; or diagnoses or attempts to diagnose, operate upon, professes to heal, prescribes for, or otherwise treats any ailment, or supposed ailment, of another; or maintains an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; . . . and does not possess a valid license issued to pursuant to this Act, he shall be sentenced as provided ... . ILL. REV. STAT. ch. 111, para. 4400 11-4400-21 (1989).

 

298. 74S F. Supp. at 1391. By stating its support for the constitutionality of medical licensing of midwives, the court may have given the green light to the Illinois legislature to expand its definition of medicine to include midwifery. The new Act reads as follows:

If any person does any of the following and does not possess a valid license issued under this Act, that person shall be sentenced as provided . . .: (i) holds himself or herself out to the public as being engaged in the diagnosis or treatment of physical or mental ailments or conditions including, but not limited to, deformities, diseases, disorders, or injuries of human beings; (ii) suggests, recommends or prescribes any form of treatment for the palliation, relief or cure of any physical or mental ailment or condition of any person with the intention of receiving, either directly or indirectly, any fee, gift, or compensation whatever; (iii) diagnoses or attempt to diagnose, operates upon, professes to heal, prescribes for or otherwise treats any ailment or condition, or supposed ailment or condition, of another; (iv) maintains an office for examination or treatment of persons afflicted, or alleged or supposed to b afflicted, by any ailment or condition; or (v) attaches the title Doctor, Physician, Surgeon, M.D., D.O. or D.C., or any other word or abbreviation to his or her name indicating that he or she is engaged in the treatment of human ailments or conditions as a business.

ILL ANN. STAT. ch. 111, para. 440-49 (Smith-Hurd 1992).

 

In their complaint, the plaintiff midwives claimed that access to midwifery was a fundamental right included in the right to privacy in reproductive decisions first identified by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965). See supra notes 291-96 and accompanying text. Disposing of the case on a motion for summary judgment, the Peckmann court did not reach this issue.

 

For a discussion of a midwife's due process right to practice her profession, see Reilly, supra note 291, at 1131-33. Reilly also discusses the "void for vagueness" claim that statutes that merely define the practice of medicine without specifying midwifery cannot be held to authorize the regulation of midwives. Id. at 1133-35.

 

299. 745 F. Supp. at 1391.

 

300. FLORIDA DEP'T OF HEALTH AND REHABILITATIVE SERV., FLORIDA'S HEALTHY START: A COMMITMENT TO THE FUTURE 32 (1991); NATIONAL COMM'N. TO PREVENT INFANT MORTALITY, TROUBLING TRENDS: THE HEALTH OF AMERICA'S NEXT GENERATION 15 (1990); HOWE SELECT COMM. ON HUNGER, lOlST CONG., 2D SESS., INFANT MORTALITY WITHIN MINORITY AND RURAL COMMUNITIES: A GLOBAL PERSPECTIVE ON CAUSES AND SOLUTIONS 3 (Comm. Print 1990).

 

"Low birthweight" means that the infant was born l) too soon; 2) too small (less than 5.5 pounds); or 3) both. CHILDREN'S DEFENSE FUND, MATERNAL AND INFANT HEALTH: KEY DATA, SPECL'L REPORT ONE 4 (Mar. 1990) at 10.

 

301. Id. at 4.

 

302. MENDELSOHN, supra note 171, at 37.

 

303. NATIONAL COMMISSION TO PREVENT INFANT MORTALITY, supra note 291, at 14.

304. FLORIDA TASK FORCE ON GOV'T FINANCED HEALTH CARE, FINAL REPORT 29 (March 1991)

 

305. FLORIDA DEP'T OF HEALTH AND REHABILITATIVE SERV., supra note 291, at 6.

 

306. Dr. Thomas Brewer, Address at NAPSAC Summit (1986).

 

307. Angela Davis, Address to California State Dept. of Consumer Affairs (1981), reprinted in CALIFORNIA STATE DEPT. OF CONSUMER AFFAIRS, PREGNANT WOMEN AND NEWBORN INFANTS IN CALIFORNIA: A DEEPENING CRISIS IN HEALTH CARE 26(1982), quoted in EDWARDS & WALDORF, supra note 6, at 175.

 

308. NATIONAL COMM'N. TO PREVENT INFANT MORTALITY, supra note 204, at 16.

 

309. Caroline Flint, Should Midwives Train as Florists?, NURSING TIMES, Feb. 12, 1986, at 21. Further, the experiences of other countries destroy the argument that direct-entry midwifery is novel and untested. "Far from being untested, direct entry midwifery education is far more tested than is nurse-midwifery. England, France, Belgium, The Netherlands, Germany, Austria, Denmark, Italy and Japan&emdash;all of which have lower infant mortality rates than the United States, have always had direct entry midwifery education." Haire, supra, note 126.

 

310. See OAKLEY & HOUD, supra note 153, at I84.

 

311. See, e.g., Reilley, supra note 291, at ll46; see also Debra Evenson, Midwives: Survival of an Ancicnt Profession. 7 WOMEN'S RTS. L. REP. 313, 330 (1982).

 

312. Reilly, supra note 291, at 1142. Cf. Evenson, supra note 311, at 329-30. Evenson writes:

 

Present policies and attitudes appear to be at odds with developing better maternal/infant health care. The health care system should recognize qualified midwives, and thus promote greater safety in and support for home birth, instead of trying to prevent it through punitive measures.

 

The sensible solution is to license qualified, trained midwives&emdash;both nurse- and lay midwives&emdash;under a unified licensing provision which recognizes midwifery as an independent profession.

 

313. Reilly, supra p. 291, at 1145.

 

314. Raymond DeVries, The Contest for control: Regulating New and Expanding Health Occupations, 76 AM. J. PUB. HEALTH 1147, 1149 (1986). See generally Kristen D. McIntosh, Note, Regulation of Midwives as Home Birth Attendants, 30 B.C.L. REV. 477 (1989).

 

315. FLORIDA SENATE COMMITTEE ON HEALTH AND REHABILITATIVE SERVICES, STUDY OF THE PRACTICE OF LAY MIDWIFERY 65-66 (Feb. 1991).

 

316. See FLA. STAT. ch. 467.002-209 (1992).

 

317. HEALTH COMMlTTEE, HOUSE OF COMMONS, 1 MATERNITY SERVICES ¶¶ 33-l00 (U.K. 1991-92 Sess.).

 

318. See Graves v. Minnesota, 272 U.S. 425, 427 (1926); Dent v. West Virginia, 129 U.S. 114, 121 (1889).

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