Legal Status of Unlicensed Midwives in Indiana

There is an interesting discussion in the comments to my midwife posts (read here and this post) about the legal status of unlicensed midwives in Indiana. So called “direct entry” midwives practice arts aiding women in traditions that go back before written history. Many feel that the government has no role in regulating the activities of these midwives, but that’s not how government works.

Actually, Ms. Williams is a certified professional midwife, meaning that she was certified by the North American Registry of Midwives. But there is no recognition of such a designation in Indiana Law.

In reality, traditional non-licensed midwives operate in a legal gray area in Indiana. Typically, since they do not have offices or advertise, they are under the radar of state officials, operating on word of mouth, and in the privacy of people’s homes. Their activities come to light when there is a problem, as in the Williams case, where a child died in birth.

The article I cited yesterday on the Williams case (link) notes that some state at least recognize non-licensed midwives, limiting them from actually delivering babies. Indiana does not cover this issue.

Instead, Indiana’s regulatory scheme says, in effect, a “midwife” is a licensed midwife, and “practicing midwifery” is the performance of activities by a licensed midwife. This circular definition does not tell us what, if anything, an unlicensed midwife can do. You can read the whole nursing code, which regulates the licensing of midwives, and you will not find an answer to that question. (Indiana Nursing Licensure Laws and Regulations, A Compilation from the Indiana Code and Indiana Administrative Code. PDF). The use of the word “midwife” does not resolve the issue. If we instead call unlicensed midwives “female’s assistants” in Indiana, haven’t we escaped the regulations entirely?

So, the activities of an unlicensed midwife are left to be governed by Indiana’s general medical licensing statute. Indiana Code (IC) 25-22.5-8-1 says it is unlawful to practice medicine without a license. IC 25-22.5-8-2 says it is a class D felony to practice midwifery without a license. IC 25-22.5-1-1.1 defines the “practice of medicine” in extremely broad terms, including holding oneself out to the public as being engaged in:

1. the diagnosis, treatment, correction, or prevention of any disease, ailment, defect, injury, infirmity, deformity, pain, or other condition of human beings;
2. the suggestion, recommendation, or prescription or administration of any form of treatment, without limitation;
3. the performing of any kind of surgical operation upon a human being, including tattooing, except for tattooing (as defined in IC 35-42-2-7), in which human tissue is cut, burned, or vaporized by the use of any mechanical means, laser, or ionizing radiation, or the penetration of the skin or body orifice by any means, for the intended palliation, relief, or cure; or
4. the prevention of any physical, mental, or functional ailment or defect of any person.

Certainly the “treatment” of and “other condition of human beings” would seem to cover a midwife helping a woman with a pregnancy, but this provision is so broad, I would probably be practicing medicine by telling a client to take an Advil for a headache. (aside: Did I practice medicine when I cut the umbilical cord for my son?). The practical effect of such a broad provision is to give the regulators complete discretion as to what to prohibit and what to let slide. The problem with this is that we do not know if something will be unlawful until the regulators come out and say it is.

I assume that the regulators would not stop a mother from telling her daughter things about her pregnancy to help her out. I also assume that, if someone became known as being knowledgeable about pregnancy issues, and friends and neighbors called on her for advice with their pregnancies, the state would not treat this as the practice of medicine. But where is the line in the sand? What specific actions of a midwife are the practice of medicine? Is it the payment of compensation? The statute does not mention that. If so, are volunteer unlicensed midwives legal?

After reading through all of this, I guess I would have to agree with the contention that Indiana law is unclear a to what an unlicensed midwife can do in the State of Indiana.

This entry was posted on Friday, June 16th, 2006 at 10:19 am and is filed under Criminal Times, Indianalaw, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.