The Midwives’ Tale

Critics say New York’s laws on midwifery are too restrictive—so much so that they’re driving women across state lines to give birth

By Nancy Guerin
Photos by Teri Currie

It has been just over six years since two undercover cops showed up at Roberta Devers-Scott’s job, in Onondaga Hill, New York, to arrest her for practicing midwifery without a license.

Though Devers-Scott was working as a family planner for the state Department of Health, she had also worked underground as a direct-entry midwife for 11 years, an occupation that led to her arrest. Direct-entry midwives are women who do not have nursing degrees but have received extensive training, through midwifery programs and apprenticeships, to assist families in delivering their babies at home.

Devers-Scott recognized the arresting officers who showed up at her job as David and Eileen Grogan, a couple who had come to see her at her home two months earlier, seeking assistance to have a home birth. Devers-Scott remembers being suspicious of the couple from the get-go, but still decided to discuss their options for a home birth.

“I knew something was up when they first came to see me because they did not seem as educated about home births as most people who want to go that route,” says Devers-Scott. “People seeking home births are usually the best educators amongst us, and they just did not seem to know much.”

Scott says that she asked the Grogans what they did for a living, a question she usually doesn’t ask potential clients. When David Grogan told her he investigated fires, she replied by asking if he investigated midwives as well.

A couple of months passed before Devers-Scott met up with the couple again, but on Dec. 13, 1995, they came to arrest her.

“Just as I had suspected, they were investigators, and I was picked up on two felony counts for practicing midwifery without a license,” says Devers-Scott. “I had not actually done anything more than meet with them, but if you call yourself a midwife, and you are not licensed by the state—which I did—it constitutes a felony. I was looking at three to five years in prison.”

Devers-Scott was the first direct-entry midwife to be arrested for practicing without a license under New York’s 1992 Midwifery Practice Act.

“They did not even know how to process my case at the police station,” she says.

After months of deliberation, the charges against Devers-Scott were dropped down to attempt to practice, rather than actually practicing, midwifery. She was fined $900, given three years probation and ordered to cease practicing midwifery. She tried for a year to get licensed in New York state, but to no avail.

Devers-Scott finally decided to leave New York and move to Rutland, Vt., where the laws were less stringent and where she did not have to practice midwifery in hiding. She has opened her own practice, called Beechwood Midwifery. In fact, after she assists women in delivering their babies, she places a sign on their front lawn that reads, “Beechwood Midwifery welcomes a beautiful baby . . . born at home.”

“I have gone from essentially being handcuffed with felony charges in New York, to introducing a bill here in Vermont to protect the profession from what happened in New York and having it pass,” says Devers-Scott. “I am now a licensed midwife and a Medicaid provider. I have a thriving business where people know me and respect me. I was appointed by the secretary of state to be one of the advisors to the rules process for midwifery in Vermont, and I’ve become licensed in four states since New York, and no one has turned me down.”

Although life for Devers-Scott may be much different in Vermont than it was in New York, just 30 miles across the New York-Vermont state border, handcuffs and prison still await other direct-entry midwives practicing in New York—if they get caught.

Technically, there is nothing illegal about giving birth at home. Home births are legal when a state-certified midwife is in a collaborative situation with a physician who allows her to attend out-of-hospital births. But New York laws make it virtually impossible for expecting couples to choose home birthing as an alternative to hospital-based care. For one, the licensing procedure in New York state makes it difficult for direct-entry midwives to become certified to practice, and it is impossible for them to legally get training in home births. Instead, they are forced to receive all of their birthing practice in schools that train in hospitals.

The second obstacle, according to Carolyn Keefe, cofounder of BirthNet, an organization that works to educate the public about maternity care, is that once midwives get licensed, the only way they can practice is by collaborating with a physician, a situation in which the doctor is held responsible for the midwife’s practice. Very few doctors permit the midwives they work with to do home births. In fact, there is not one midwife in the Capital Region at this time whose collaborating physician permits her to do them. Devers-Scott is one of the closest midwives that women in this region can go to who can help them have their babies at home.

As a result, many women in New York are either renting houses in Vermont or Massachusetts so that they can give birth the way they want to, or are having home births illegally with midwives who are “underground.”

The passage of the Professional Midwifery Act in 1992 made practicing midwifery without a license a felony in New York state. It also appointed a Board of Midwifery, through the state Board of Education, to over see the licensing process.

“Ironically, New York state law makes those who have the most experience with home births felons if they get caught,” says Tisha Graham, co-coordinator of the New York Friends of Midwives, an advocacy group working to change New York’s laws. “But the programs that they have set up do not allow women to gain experience in a home-birth setting.”

According to the Professional Midwifery Act, only two types of midwives can legally practice: certified midwives or certified-nurse midwives. The first is a person who has received her training through the state’s two-year program offered at the State University of New York in Brooklyn; the other is a certified nurse who has completed an additional course of study in midwifery.

Graham says that when it was first introduced, many midwives praised the notion of a certified midwife because up until then, only certified-nurse midwives were granted permission to practice.

“We thought this meant that all of these women with years of experience who had received their training either through other schools, like the Seattle School of Midwifery, or abroad would be able to get licensed,” says Graham. “The hope was that through an equivalency process, the direct-entry midwife would be recognized.” In fact, she adds, already-
practicing midwives were even invited to fill out applications to practice legally.

However, very few experienced midwives were allowed to continue to do their work: Of the 20 midwives that applied for licenses, she says, only two were granted credentials and the rest were “mysteriously” placed under investigation.

Alison, (not her real name), a direct-entry midwife certified through the North American Registry of Midwives who has been assisting families in the Capital Region for more than 26 years, points out that there is a fundamental difference between the medical approach to birth and the midwife’s approach.

“Birth is looked at in this area as danger, danger, danger,” says Alison. “But a midwifery model doesn’t look at birth this way. We view birth, as a natural, normal part of life, and to us, normal is huge. . . . We trust in a woman’s ability to give birth, [and] a midwife’s job is to support that process.”

While all midwives promote natural childbirth and strive for as little intervention as possible, the direct-entry midwife avoids procedures such as ultrasounds, electronic-fetal monitoring, medication, episiotomies and enemas. Direct-entry midwifes rely on their hands, ears and intuition for guidance. They often use a blood-pressure cuff, a stethoscope, a fetal scope to listen to the fetus, a birthing stool and a birthing tub.

The women in labor call most of the shots during a home birth. They do whatever they need to do to make themselves most comfortable. If they want to walk, shower, squat, lay on their side, sit in a birthing tub, laugh, cry or scream, they do it. If they want candles, music, special friends at the birth, that is all their choice. Whereas in hospitals, the rules are more stringent and it is usually the doctor who dictates how the birth will go.

Cindy, who had her two of her children at home and now assists midwives at home births, says that she has seen midwives in a variety of positions ready to “catch the baby.”

“The midwife goes where you go to catch your baby,” says Cindy. “They get in showers, the bathtub, under tables. If you want to lay on you side or squat, the midwife works around you.”

She says that allowing women to have mobility during labor, and especially while delivering the baby, is more comfortable for the woman than needing to stay in one stationary position, hooked up to machines, like you must do in most hospitals.

Another important role of midwives is to counsel and educate women and their partners about birth. Alison says that she spends about an hour and a half each month with the women she works with, and those meetings increase the closer they get to the birth.

Many of the things that happen are preventable, says Alison, but she thinks women need a level of care that helps prevent complications.

“On average, a woman sees her OB/GYN for about 10 minutes, with the CNM maybe 15,” says Alison. “I spend time with people. I can be with someone and know if she looks off or funky. I can figure out how they are really doing, and that is the stuff that often physicians miss.”

Part of the time spent with the midwife is used to check how the woman is doing physically, but just as importantly, it is a chance to see how she is faring emotionally.

“I build a relationship with these women,” says Alison. “While a physician may see 50 to 60 patients a month, I work with only two or three a month. Birth is not just the physical event of giving birth to the baby. There are emotional, social and relational issues that all come into play here. If people are deeply stressed or divided in their lives, birth will be deeply stressed and divided.”

In that hour and a half, Alison says, the woman is likely to talk about some of the fears or problems she may be having in her personal life. In the end, she says, knowing a woman’s emotional state helps her to help the women she is working with.

“You know we are mammals, and as mammals we respond to birth the same way,” says Alison. “We need to feel safe and secure to let go. . . . The body is wise and won’t go into labor if it doesn’t know it will be safe.

And midwives know that at times, medical assistance is necessary—and they’re not afraid to take advantage of it when it is needed.

“A trained midwife monitors a woman’s labor process very closely,” says Alison. “They are watching, listening and are there from beginning to end. If a midwife senses trouble, it usually is detected early on, with plenty of time to get to the hospital. If you are part of the whole process, there usually are not too many surprises when the baby comes out.”

She also says that, if for any reason a woman has health problems that infringe on her ability to have a safe out-of-
hospital birth, then a competent midwife would not take a chance on performing a birth at home.

“This is not home birth or bust,” says Alison. “Midwives do believe there is room for a medical model of care, when it is needed. But that is needed a very small amount of the time.”

In her 29 years as a midwife, she averages about two to three transports a year to the hospital; in all of the deliveries in which she sought hospital care, both the baby and the mother were just fine.

“It has always been good baby, good mother,” says Alison. “It is about preventive care, and if the baby or the mother need help then we go to the hospital, we get the prudent, intelligent, smart, thorough help that is available. And we don’t wait until it is too late.”

When she does need to transport a woman to the hospital, however, there are only a few physicians she can call for medical backup. Many doctors view home births as dangerous and look down on women who practice midwifery without a license; some have even said it is the first form of child abuse. Others are afraid of losing their medical licenses if caught helping an “illegal” midwife. Further, the concern of malpractice lawsuits, should problems arise once a woman is brought to the hospital, contributes to a doctor’s fear of backing up midwives doing home births.

Donna Williams, executive director of the American College of Obstetricians & Gynecology, says the main reason physicians don’t support home births is the potential health risks involved. For example, she says that if complications start to arise during the birthing process, such as fetal distress, it is important for doctors to be able to attend to the patient within 20 minutes. If the woman is at home, she says there is no guarantee that she can be brought to the hospital in a timely manner. Therefore, she says, home birthing poses liability issues—not just financial, but physical ones. In fact, most insurance companies will not cover the expense of an out-of-hospital birth at all.

“If a woman delivers vaginally and some problems occur in the birthing process, that would require an emergency C-section, and if you are at home, that can’t be done,” says Williams.

Dr. Jeffery Altman, an obstetrician-gynecologist in Albany who has two certified-nurse midwives at his practice, agrees that there are safety precautions to consider when dealing with the issues surrounding home births. But he also said that part of the problem stems from the difference in training.

“We have a more rigid expectation for what a normal labor is supposed to be,” says Altman. “I think that we pride ourselves on this evidence-based medicine where we try to make decisions based on what the evidence shows. We were trained in a way that did not have any place for home births. . . . But I think when we look worldwide, or even in this country, there is very strong evidence that women can deliver at home in a safe manner.”

Yvette Riley, a certified-nurse midwife working with Altman, says that while all midwives share the same model for birth, she would personally not feel comfortable in a home-birth setting because her training did not provide her with that type of experience.

Altman doesn’t permit the midwives at his practice to do home births. The main reason, he says, is that they are not covered by his insurance plan. But another concern he raises is that the system is not set up to make out-of-hospital births a safe alternative.

“All of the logistics could be worked out if we were open to those kinds of ideas,” he says. “In other states and countries, they are set up to do this at home. They have all the equipment, they have insurance, they have the backing of the medical community, and it becomes a very reasonable thing to do. But I think what is happening in New York is that we have a bias or perception that we don’t support this, and by deciding we are not going to support this, we make it less safe.”

Keefe said that birth is big business in the United States. She points to the United States Center for Health’s Web site, which shows that the top four surgeries done on women are obstetric procedures, with episiotomies, caesarian and artificial rupture of the membranes leading the list.

“Of the five most common surgical procedures in the U.S., four are obstetric in nature,” says Keefe. “This is slightly fewer than cardio procedures, except obstetrician procedures are only done on women.”

The high level of surgical procedures in hospitals, many midwives believe, goes back to the whole idea of what is a normal labor-and-delivery process.

“For a midwife, time is on her side,” said Maureen Murphy, co-coordinator for New York Friends of Midwives. “Often if you are in a hospital the clock starts ticking, if you are not progressing at their expected timeframes, then they are going to say, ‘OK, we can’t let you go any longer, we have to give you a caesarean or induce your labor.’ But often with a midwife there are no time constraints. The woman delivers the baby on her own time and the baby’s own time.”

Keefe says that, ironically, other industrialized nations that depend on midwife delivery consistently achieve better birth outcomes and have lower mortality rates than the United States.

Altman agrees that money and power are motivating factors as to why many doctors are against opening up the medical system to permit home births.

“When you get below the surface of what is said, there is a tremendous issue of power and money,” says Altman. “I think it is naïve to think that obstetricians are going to support a system that has a large amount of their patients delivering at home. It cuts the obstetrician out of that process. I think that clouds our impression of whether it is a safe thing to do.”

Ginger Swasey, who lives in the Adirondacks, is not letting New York state laws stand in her way of having the birth of her choice. She is traveling to Vermont this summer and renting a house, and she is going to deliver her third baby—with Devers-Scott.

She said that five years ago, when she gave birth at home to her second child, the situation was pretty much the same. She was hoping that by the time she was ready to have her third child, more options would be available to her. But instead, she said, there are actually less.

“The one free-standing birth center within three hours of me is now shut down,” says Swasey. “Almost all midwives in my area work in group practices under the direction of a physician. This means you can’t be assured of who you will get at the time of birth, as it is whoever is on call.”

She says that now, as a result of such stringent laws, a women must choose to give birth in settings they are not comfortable with, births that are unattended, they must travel out of state, or they must look for the very few women still willing to risk everything to continue to provide services they strongly believe in.

“We have legislated, regulated and criminalized women that work successfully as direct-entry midwives,” says Swasey. “Women must now go to extraordinary measures to assure something that should just be. . . . It seems that we have traded in a woman’s freedom of choice for freshly painted pastel walls, pretty pictures covering medical equipment and higher
C-section rates.”

For many advocates of direct-entry midwifery, much of this all boils down to a women’s right to choose.

“It’s a pro-choice issue,” says Murphy. “Couples have a right to have a baby out of the hospital with support. I believe New York state establishes a situation making it impossible for families to have that support and that choice. Should women have to give up the right to make decision about their bodies because of hospital protocols? Should they have to give up these rights because labor is taking too long on somebody else’s time clock? Should they have to give up decisions about birth because there are no options available to them?”

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