A state Appellate Court ruling is being hailed as a victory for midwives and the right of Connecticut families to choose home births.
The court issued a decision in a case that pitted two midwives against the Connecticut Medical Examining Board. The ruling ended more than a decade of litigation in which the Department of Public Health had tried to outlaw home births by midwives who are neither doctors nor nurses, branding it as the "unauthorized practice of medicine," said attorney Diane Polan, of New Haven.
Polan represented the two midwives in the case, Mary Ellen Albini and Joan Mershon, since they were first charged in 2002. Mershon died earlier this year.
The appellate decision reversed a decision of the Connecticut Medical Examining Board, which had issued a "cease and desist" order against the certified professional midwives who, in 2000, helped a woman with her pregnancy and the birth of their child.
Certified professional midwives are not the same thing as certified nurse-midwives. The latter are regulated by statute and primarily assist with hospital births as part of an obstetrical team.
The decision comes as home births appear to be on the rise nationwide. Although they still represent fewer than one percent of all U.S. births, a study by the federal Centers for Disease Control and Prevention showed a 20 percent increase between 2004 and 2008.
At the same time, the National Association of Certified Professional Midwives says that 28 states recognize the status of those who perform home births; according to published reports, Pennsylvania's state medical board is drafting rules that would make it the 29th state to allow these types of midwives. Though they lack medical degrees, individuals must meet certain educational and training standards to receive the national certification. By most estimates, there are about 6 certified professional midwives who attend home births in Connecticut.
According to Polan, "the Appellate Court recognized that the Medical Examining Board had exceeded its limited statutory authority by attempting to abolish the common law practice of midwifery. There is very powerful language in [Judge Barry Schaller's] decision recognizing midwifery and the historical importance of this profession. We are very pleased with the decision, particularly because the Appellate Court remanded the case to the trial court with directions to sustain the plaintiffs' appeal. That means there will be no further proceedings before the board."
Assistant Attorney General, Henry Salton, who argued the case for the state, referred calls to the AG office's press contact. Susan Kinsman. She said that the Appellate Court's decision is being reviewed to determine whether officials will appeal to the state Supreme Court.
To be sure, there are those who have concerns about the safety of home births. In some states, midwives attending homebirths have been arrested. Some physician groups have opposed the concept, saying that the lives of children and mothers are put at risk if emergencies arise during pregnancy or birth and no medical professional is present.
Cease And Desist Order
The Connecticut case has its roots in the year 2000, when a pediatrician in the Bristol Hospital emergency room filed a complaint with the state after a newborn was admitted to the hospital several hours after being delivered. The infant's family had been assisted by the two midwives and had been planning a home birth, though the child was actually delivered on the way to the hospital after complications developed.
Administrative hearings before a panel of the Connecticut Medical Examining Board went on for several years, before a decision was issued ordering the midwives to "cease and desist" from the practice of medicine. On appeal to the Superior Court, a trial judge found the order to be vague and unenforceable, after which the board issued another, more detailed "cease and desist" order.
The effect of that order, the plaintiffs argued, would be to ban the practice of midwifery by anyone who is not a certified nurse-midwife. A trial judge declined to dismiss the second examining board order, and the case was appealed to the Appellate Court.
"Rather than wasting tens of thousands of dollars of taxpayer money seeking to destroy the small community of certified professional midwives in Connecticut, who work with families who want home births, the Department of Public Health would be better served proposing legislation to license and regulate certified professional midwives, as is done is many other states. The plaintiffs in this case have been advocating regulation for years, even during the course of this litigation," Polan said.
Evidence shows that home births are safe and that the mortality rates are as low, or lower than with hospital births, she said.
Priya Morganstern, a public interest lawyer who works with non-profit organizations, is a member of the board of directors of the Foundation for the Advancement of Midwifery, which funds programs and projects that increase access to midwifery.
Morganstern the appeals court decision was important because it confirms that the practice of midwifery is not the practice of medicine. "I hope this is just the start of making midwifery more available in Connecticut, not the end game," she said. "The state should license [certified professional midwives] and could then oversee them as it does any other health professional."
If the midwives were licensed, they would be eligible for insurance reimbursement. That, said Morganstern, would make them "more widely available and accessible. And this would be very good public policy because midwifery care in all settings – including out-of-hospital – has been associated with improved outcomes [for mothers and infants], fewer unnecessary interventions, better satisfaction, and reduced cost."