Saturday, July 2, 2011

Licensing vs Decriminalization

Hope everyone is enjoying their Independence Day weekend. This post seems appropriate for this holiday, as it addresses freedom and law in the U.S.

One commenter on my post, How Homebirth Benefits Babies, said that she feels decriminalization of midwives would be a better way to legalize midwifery than licensing. I am aware of the division within the midwifery support community on the issue of licensing. Here is the issue, as I see it.

The arguments for decriminalization
Licensing puts restrictions on midwifery practice. States that license midwives have laws governing direct-entry midwifery that determine the criteria for acceptance as a midwifery client and conditions that require transfer to hospital-based care. These criteria may categorize a woman as "high risk" who is not really very high risk at all. For example, Arkansas law states that licensed midwives may not treat women who have previous cesarean sections, multiple gestation, maternal age greater than 40, or previous infant weighing more than 10 pounds. It also requires transfer for non-vertex positions and gives a set number of hours a woman can be in labor before she has to transfer. Here, in the state of Washington, transfer is required for women who pass 42 weeks gestation. I most definitely do not believe that all women that fit into these categories are only safe birthing in a hospital. These kinds of restrictions put many women and their midwives in tough situations, where the midwife could risk losing her ability to practice legally if she choses to help a woman have the homebirth they may both feel is optimal for her.

In theory, decriminalization would give midwives the freedom to set their own standards without the fear of prosecution for practicing medicine without a license (something underground midwives in states where homebirth midwifery is not legalized in any way have to deal with) and without having to worry about being punished for not following the terms of the state that gives them a license.

The arguments for licensing
The Unnecessarean reposted a discussion from their facebook wall on a status update that they shared from Big Push for Midwives'. It is an interesting conversation between midwives, consumers, lawyers, and advocates that I recommend reading if you want a good grasp of the different points of view on the issue. Here are a couple of quotes that address why licensing appears to be the best course:
Just “make midwifery legal”? How? By pushing for a blanket “midwifery is legal” law? How do you define midwifery? How do you define a midwife? How do you define what is NOT covered? All of these things would have to be done in order to “make midwifery legal.” All of these things are the same exact things done with licensure.-Tara ANaturalAdvocate

[A]s a practical matter, simply legalizing midwifery — that is, decriminalizing the practice of midwifery by statute and/or getting the legislature to pass a law to officially declare that midwifery will no longer be considered unauthorized practice of medicine or nursing — would be politically impossible. Organized medicine, and often organized brainy, fight tooth and nail against efforts by consumer groups to regulate midwifery. They win over many legislators by claiming that licensed certified professional midwives are unsafe. Can you imagine the field day the OBs and medical society would have, or how skeptical the legislators would be, if the legislation simply allowed midwives to practice without any state oversight? Even if this legislative option may have worked ever in the past, it would be truly impossible today. Really truly impossible. Our state groups are there “in the trenches” and know how difficult it is already to get licensed regulated midwives.-Susan M. Jenkins
Why push for the licensing of midwives? Because licensing legislation actually happens. Because states have the right to regulate health care providers who practice there. Because the majority of professions require some sort of license/certification/official credential to do their job. Because in order to legally recognize midwifery, you have to define it, and by defining it, you necessarily have to determine what it is not, which by definition will "limit" midwifery.

Oregon is the one state I know of were there is "decriminalized" midwifery--midwives have two options--they can choose to obtain a license from the state (which allows them to file for reimbursement from the medicaid system) or they may legally practice midwifery without a license. However, practicing without a license means it is a felony for these midwives to use oxygen and pitocin, as the use of such drugs falls under the category of "practicing medicine." I believe that women and babies benefit when midwives have the ability to legally use life-saving medications in the home in the event of an emergency. It appears to me that there is definitely a trade-off. Either midwifery involves the occasional practice of medicine, or it does not. You can’t have it both ways.

Beyond the ability to have pitocin and oxygen available, licensing also ensures consumers a minimum standard for licensed midwives. No, being licensed does not guarantee that someone is a competent midwife, but it gives consumers some indication of the midwife's qualifications. When anyone can claim to be a midwife, it creates a confusing and unsafe environment for consumers.

Licensure also strengthens the credibility of midwives, both to consumers and to medical professionals. Knowing that licensed midwives have completed certain requirements may make physicians and hospitals more respectful of them, allowing for better collaboration, which also benefits mothers and babies.

Many states do have mostly good, evidence-based guidelines for the scope of practice of midwifery. It is not necessarily licensing that limits homebirth options, but rather certain state’s licensing laws. Those who are unhappy with their state’s licensing regulations are free to organize consumer efforts to change those laws.

I, personally, am quite convinced that licensing is the most feasible way to legalize midwifery and that it helps make homebirth safer for consumers. What do you think?

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