TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, April 3, 2006

Unlicensed Midwifery

This NYT story on home births focuses on the potential for criminal charges against midwives performing home births (illegal in nearly a dozen states), and on the reasons for both statutes prohibiting such births and for bringing charges.  The story focuses on a prosecution in Indiana that arose out of the death of a baby, but, interestingly, nobody asserts that the midwife was at fault for the tragedy.

Stacey A. Tovino, who teaches at the Health Law and Policy Institute at the University of Houston Law Center and has written on midwifery and the law, said prosecutions of midwives almost always started with a tragedy.

"No one complains until a baby dies or a mom dies," Professor Tovino said. But once the issue arises, she said, legislatures often become involved as well, with doctors and midwives engaging in a bitter struggle over the proper regulation of midwives, one driven by a mix of motives that are difficult to disentangle.

"There has always been a tension between true quality-of-care concerns and anticompetitive concerns," Professor Tovino said.

The cases, if in a tort context, present interesting negligence per se and assumption of risk questions, too.

(In case it's relevant: my daughter was born in a hospital with a midwife; my son was born [legally] at home with a midwife.)

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