March 14, 2007
Volume 9, Issue 6
Midwifery Today E-News
“Legal Issues”
Print Page

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In This Week’s Issue:

Quote of the Week

"It is easier to make certain things legal than to make them legitimate."

French playwright, 1741–1794

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The Art of Midwifery

In 1997, New York required midwives to have post-nursing education and written practice agreements with obstetricians or hospitals. A direct entry midwife, Lange-Kessler, argued that the requirements violated her right to practice a lawful profession. Specifically, she argued that the statute was irrational because homebirths supervised by direct entry midwives were as safe as hospital births and because obstetricians refused to enter into practice agreements with midwives. The court held that even if Lange-Kessler's assertions were true, it was still reasonable for the legislature to have believed, when passing the law, that midwives who had nursing degrees and were affiliated with obstetricians would be more fit than direct entry midwives to assist births. Thus, the statute was constitutional.

In 1995, only a nurse or physician could practice midwifery in Alabama. A direct entry midwife charged with practicing nurse-midwifery without a license challenged the statute on privacy grounds. The Alabama Criminal Appeals Court held that because the right to privacy did not extend to choosing the manner of childbirth, a mother's privacy right was secondary to the state's interest in protecting mothers and newborns.

Erik L. Smith, excerpted from "Midwifery and the Constitution," Midwifery Today Issue 65

To learn more about how much the courts care about the art of midwifery and why challenges to the practice of direct entry midwifery cannot be overcome by constitutional arguments, you need Midwifery Today Issue 65.

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Midwifery and the Law

We who live in the United States are fully aware how different our country is from most others when it comes to midwifery and the way the state looks at childbirth. If we try to list every variety of midwife that has come into existence during the last half-century, we have to write a very long sentence with lots of adjectives and commas. We lead the world in the number of criminal trials for the practice of midwifery or the practice of medicine, or even manslaughter or second-degree murder charges brought against unlicensed midwives. In this dubious sweepstakes, we have the company of our neighbor to the north, Canada, which got itself into a similar societal mess a century ago by neglecting to create a way for midwives to continue to exist by following the example of the rest of the industrialized world. In both countries, obstetrician-surgeons became the overlords of childbirth, and two generations of women came to consider it "normal" to have their babies in hospitals where there was no such person as a midwife.

— Ina May Gaskin, excerpted from "Unity: An Elusive but Necessary Goal for US Midwives and Their Advocates," Midwifery Today Issue 64

Ina May Gaskin suggests that midwives unite and look to other countries for ideas on passing laws to ensure that midwifery and homebirth survive. To read more, you need Midwifery Today Issue 64.

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Research to Remember

Researchers at Aberdeen University Medical School in Scotland found, in a 17 year long study of more than 25,000 women, that those who had had a cesarean were less likely to have another baby, and that those who did waited longer than mothers who had vaginal births. The researchers also found that the women who had a caesarean were also more likely to have an ectopic pregnancy the next time.

BJOG August 2005, 112(8): 1061

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Web Site Update

Check out the brand-new issue of Midwifery Today magazine. The theme is Primal Health, with a gorgeous cover photo by Shawna Wentz. View the table of contents here.

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Question of the Week

Q: I have a friend whose three-month-old baby girl has closing labia and is now only peeing out of one-third of what the opening should be. The doctor says that sometimes they open again themselves, but has prescribed estrogen cream to put on it. He said not to worry if you see her breasts become large for a while. He also said that sometimes this happens when there has been a sore or tear and it healed wrong, and that they may have to think about cutting it open again.

Does anyone know how common this is and if there are alternatives to putting estrogen on the baby? They don't want to do this, but we don't know anything about this problem.

— Audrey Lynne

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Question of the Week Responses

Q: Women being discharged from hospital receive almost universal postpartum instructions to avoid tub baths. I suspect that long ago some OB thought this sounded reasonable and it was repeated from generation to generation till it became etched in stone ("common"sense??).

I rather think this is hogwash but have no evidence one way or the other. Apart from the studies cited about women in labor with ruptured membranes NOT having increased infections caused by tub baths in labor, does anyone know of any evidence supporting or discrediting the theory that bath water gets up into the vagina (postpartum or otherwise)?

— Susan Robinson
Ukiah, California

A: I'm afraid you are mistaken that the advice not to have "tub baths" is universal in the postpartum period. In Scotland we encourage women to have a bath within the first couple of hours after birth and then on a daily basis as and when they wish. We have a low level of post partum infection and the women seem to find the bath relaxing and enjoyable.

— Brenda Docherty
Glasgow, Scotland

A: See the following link from Ronnie Falcao's midwifery site:

It is very succinct and pertinent:

In the labor and delivery unit where I work as a staff nurse, we put our mothers in the Jacuzzi all the time after birth; a Jacuzzi is great for the "all-over soreness" that moms complain of, and also soothing for soreness at the epidural site. We don't see or hear of more endometritis or other issues from our obstetricians, and mothers love it.

From Ronnie's comments, it would appear that the research on postpartum bathing is from the late 1960s; it just takes a while to filter down! BTW, we clean our Jacuzzis by dissolving one cup bleach or one cup Cascade dishwasher soap in a hot tub and and running it for 20 minutes, then wiping it down well.

— Marianne Moore, RN, MSN, CNM

A: As far as I know, the problem is not as much the possibility of water going up into the vagina, but more the fear of potentially pathogenic bacteria that come with the lochia. Taking a tub bath with the lochia being dissolved in the water, they might get to the breast and there cause a mastitis, although I am not sure whether there is any evidence for that.

Sorry about my English, I am not a native speaker.

— Dagmar Erdmann

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Think about It

Help spread the word about birth to older woman so they can teach their daughters and granddaughters.

A Midwifery Today staff member has started a group on, a social networking site for people 50 and older. The name of the group is "Better Birth for our Daughters and Granddaughters" and you can find it here:

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It dawned on me as I was reading the information on depression during pregnancy that we should also be looking at a woman's past experiences as a culprit.

As a childbirth educator I get to spend a great deal of time with my students, and see many women about whom I worry. I can usually pick out the ones who are unhappy and as a result may have more difficult birth experiences. Unfortunately my input is limited unless I am specifically asked for information. I wonder how many are so fearful because of past physical or sexual abuse? How many have been told their bodies don't work, and that birth is a horrible thing? Pregnancy can be a very uncontrollable time in life and for a woman who has coped with past baggage by creating a very controlled environment this can be overwhelming. I talk about past baggage in general in class, and do keep information on hand for them (e.g., Penny Simkin's tapes), and have therapists I can refer them to if they ask. Usually they don't. What can we do to improve this?

Amy V. Haas

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