7 Ways Midwife Licensure Protects Consumers and Midwives When There is a Bad Outcome

Maternal health advocates across the state have come together to call on Georgia to do what more than 30 states have already done: license and regulate homebirth midwives. Research shows that licensing midwives better integrates them into care systems, and that better integration of homebirth midwives improves birth outcomes. This should be an immediate goal, since Georgia has the worst maternal mortality rate in the country, and a worse maternal death rate than 100 other countries.

Opponents of midwifery licensure point to a handful of homebirth horror stories, even as they ignore the fact that 100% of maternal deaths in Georgia occurred in hospitals. The truth is that licensure for midwives is especially important in the event of a bad outcome. It protects families, holds irresponsible midwives liable, and ensures that a midwife won’t be unfairly blamed for a bad outcome that was not her fault.

Licensure Establishes Clear Disciplinary Protocols

When midwives are not licensed, there is no state-level disciplinary board that sets ethical standards or practice guidelines. There is also no way of disciplining midwives who violate professional boundaries or who endanger their patients. Without licensure, highly responsible and well-educated midwives with years of experience and a commitment to safe and healthy birth are impossible for consumers to distinguish from midwives who are less committed to patient well-being. A midwife can keep practicing in spite of dozens of bad outcomes. Even if patients voice their displeasure with her care, their voices might not be heard and their stories might not be taken seriously—especially if a bad midwife is good at marketing herself. Disciplinary boards level the playing field.

Licensure Makes it Easier to Sue

Lawsuits are a cornerstone of our justice system because they are the only mechanism through which citizens can directly assert and enforce their rights. Anyone can bring a lawsuit. Unlike a criminal prosecution, a lawsuit does not require the approval of a prosecutor or grand jury. Lawsuits also aren’t subject to the secret proceedings of medical boards. Lawsuit pleadings are public documents, and anyone can view them.

When midwives are not licensed by the state, they cannot carry malpractice insurance. While it’s still possible to sue a midwife who lacks malpractice insurance, there’s virtually no incentive to do so. That’s because it’s very unlikely that a midwife would be able to pay a judgment resulting from a lawsuit. This harms both patients and midwives. Midwives are left in danger of bankruptcy or losing their home because they cannot carry insurance. And consumers have little hope of meaningful compensation for their suffering.

Some midwives have expressed concern about the high price of malpractice insurance in states that do license homebirth midwives. This is a reasonable concern, and malpractice insurance by no means solves all problems. By licensing midwives, however, we open another avenue to justice, and can then move onto the question of how to ensure midwives have equitable access to quality malpractice insurance.

Licensure Reduces Risks to Parents

How can a parent choose a midwife? Every parent has a different opinion on this. In most cases, parents rely on a combination of word of mouth and the midwife’s website and other marketing material. This information is not enough. Any midwife can do a good job marketing herself. And even the worst midwives may have some satisfied clients. When midwives are licensed, parents can seek out licensed professionals. While the license does not eliminate all risk, it does offer some assurance that the midwife follows professional norms and will face professional consequences if she injures a patient.

Perhaps even more importantly, threats of CPS involvement have long been used to extract compliance from parents who disagree with medical providers. When midwives are unlicensed, it is far more likely that parents who use them will face CPS involvement, particularly if there is a bad outcome. By licensing midwives, our state virtually eliminates any justification for DFCS (Georgia’s version of CPS) to be involved in homebirth cases.

Unlicensed Professionals are Vulnerable to Blackmail

Unlicensed homebirth midwives occupy a legal gray area. Homebirth is not illegal, but practicing medicine or midwifery without a license is. States can and have prosecuted unlicensed homebirth midwives, particularly when they get bad birth outcomes. Midwives who are unlicensed may face blackmail from disgruntled clients. That puts them in a terrible position: give the client what they want, however unfair the request might be, or face the risk of criminal prosecution.

Licensure Ensures Midwives Are Governed by Their Peers—Not Doctors and Not Bureaucrats

Professional licensing boards are boards that govern according to specific industry norms. Doctors oversee doctors. Nurses oversee nurses. Licensure of homebirth midwives would mean that other midwives would help set and implement practice standards, and then decide how best to handle midwives who deviate from those standards. Without a homebirth midwife licensing board, other professionals get a say in how midwives practice. For example, if a midwife is accused of practicing medicine without a license, the complaint might be referred to the medical board for doctors to adjudicate. Establishing a midwifery licensing board eliminates this problem.

Licensure Reduces the Risk of Criminal Prosecution

Homebirth is not illegal, but practicing medicine or midwifery without a license is. When an unlicensed midwife gets a bad outcome—especially if she is negligent or does not follow professional norms—there is no formal structure in place to discipline her. She can’t lose her license to practice because no such license exists. She can’t be publicly sanctioned by a state board, and consumers cannot see a written record of her history, because unlicensed midwives are not members of state licensing boards. This leaves only one remedy: prosecution.

Prosecution is bad for everyone. Families may be reluctant to report errant midwives because they do not want them to be prosecuted. Even when a family does think prosecution is appropriate, prosecuting the midwife may ruin her life and make it impossible for the family to pursue other avenues of justice. A midwife in jail can hardly be expected to pay a civil suit.

Prosecution is, of course, appropriate in some circumstances. Just as doctors can be prosecuted if they deliberately harm patients, a midwifery licensing board would still allow midwives to be prosecuted for terrible care. The difference is that, when midwives are licensed and regulated, prosecution becomes an option of last resort. In our current regulatory climate, prosecution is the only available penalty.

Unlicensed Midwives Can Choose to Remain Unlicensed

Choice is a cornerstone of the movement for birth justice. Birthing people deserve the right to choose to birth when, where, and with whom they choose. For some, birthing is a religious experience that requires the presence of a priest or other religious official. Others believe that the state is not a fair arbiter of which midwives are qualified to practice. Still others rightly point to discrimination in licensing boards or the long history of granny midwives, who earn their skills through decades of training and experience rather than through traditional educational programs.

For this reason, some midwives prefer to remain unlicensed. They undertake significant legal risk in doing so. That has always been the case—and it will continue to be so if other midwives soon earn the right to become licensed. People who prefer unlicensed midwives will still have the ability to choose unlicensed midwives, and those midwives will continue running their businesses in a legal gray zone. The only difference is that midwives who choose to become licensed, midwives who want to be licensed, can do so. This means consumers who prefer a uniform standard of care can finally choose it. That means better outcomes and more choice for everyone.

The Georgia Birth Advocacy Coalition supports licensure for all midwives who desire the protection and professional legitimacy that comes with a state license. There are currently two bills in the Georgia legislature that would license homebirth midwives. The Certified Community Midwife Act would license a wide variety of midwives who fall generally under the category of community midwife. Learn more about community midwives on their Facebook page. The Georgia Licensed Midwife Act would license certified practical midwives, who are nationally certified and licensed in many other states, but not currently recognized by the state of Georgia. Learn more about the legislation here.