Emily Crockett of RH Reality Check wrote an excellent article on the state of direct entry midwifery in Delaware. She correctly identified the chief obstacle to practice: while the law requires these midwives to maintain collaborative agreements with physicians, physicians aren’t obligated to collaborate. The predictable result: no collaborative agreements and very few midwives who can legally practice.

How it works

A little additional context might be helpful to those wishing to understand how the law works and how it might be improved. First of all, let’s start by clearing up two terms that are often used interchangably, to everyone’s confusion:

• Certification indicates that a certifying organization has confirmed an individual’s skills, training and education.
• Licensure means that a state governments has granted a license to practice. Increasingly, state governments base licensure requirements on a specific certification.

For example: A direct entry midwife (i.e. a midwife who is not a nurse) successfully undergoes the education, training, and testing requirements to be certified by the North American Registry of Midwives as a Certified Professional Midwife (CPM). The certification alone does not permit her to practice legally in any state, any more than graduating from medical school allows a physician to practice legally. The midwife is lucky enough to live in Wisconsin, one of the twenty-six states in which CPMs can obtain a license. She applies for a license, pays her fee, and is able to practice under Wisconsin law. She must abide by the licensure requirements in statute as well as any rules that the governing state department or agency has promulgated regarding midwifery practice.

As long as we’re defining terms, let’s talk about different kinds of law:

• Statutes are what ultimately result when your elected representatives pass legislation. Legislation is hard to pass and hard to amend, so anything that goes into statute should be something that is not expected to change too much over time.
• Rules (or regulations) are exactly what they suggest: the practical directions for carrying out the legislature’s wishes as expressed in statute. Rules are typically written by whatever board or government department the executive branch of state government appoints or hires to oversee the practice authorized by the statute. Rules are often open to a public comment period or public hearing before they are finalized. Rules are much easier to change than statutes as they don’t need to be voted on in the legislature.

How it works in Delaware

Delaware is one of two states in which CPMs cannot obtain a license but are nevertheless legally authorized to practice. The extent of the authorization in statute is that the Delaware Department of Health and Social Services may issue regulations that:

Control the practice of non-nurse midwives including the issuance of permits and protect and promote the health of all mothers and children[.]  – Del. Code Ann. tit. 16, §122 (3)(h), emphasis added

In other words, the legislature left everything up to the Department of Health and Social Services, so most of the law that controls Delaware CPMs lives in the rules. And those rules, as outlined in Crockett’s article, require a collaborative practice agreement before a midwife can obtain a permit (note: not a license). As an aside, the rules require startlingly little else – the exact fee an applicant must pay, the kinds of births midwives may attend, the medications they may carry. None of these are specified, although there is a suggestion that some of these items fall under the collaborative agreement. It is possible, therefore, that the Department envisioned physicians as setting midwife standards of practice.

What’s the solution?

Current Delaware law may lead concerned parties to oppose regulating midwives. This is unfortunate, in my opinion, because the problem is not that midwives are regulated, but that they are regulated badly. Rather than being licensed as an independent profession, midwives are currently permitted to practice based on subordination to physicians. The remedy is full licensure – and that is exactly what advocates support in a bill currently active in the Delaware legislature.

The devil still remains in the details. Should the bill pass and become law, advocates must remain engaged throughout the process of rule promulgation in order to ensure that the rules are not restrictive to the extent that midwives are unable to practice.

Readers familiar with this issue may have noticed that I have failed to mention the safety of midwife-attended births. That may or may not be a subject for another post. However, in a sense it’s a moot point: the Delaware legislature obviously believes midwife-attended births are safe, because it passed legislation to permit midwives to practice under its constitutional and statutory duty is to protect the public’s health. Families will continue to have midwife-attended births; it is now the legislature’s duty to create an environment where midwives can practice under the protection and discipline of state law. At the end of the day, although licensure does not guarantee quality – just think of other health professions! or lawyers! – it does provide a structure where midwives’ qualifications are knowable and where midwives are subject to rules designed to keep parents and babies safe.