Legal History of Midwifery in California ~ Part 1 (of3)

~ faith gibson ~
written 2002, revised Sept 2007, posted on Jan 2020

I am one of the few individuals in either the midwifery community or the employ of the Medical Board who has been involved full-time in the legal and legislative issues of California midwifery before, during and after the passage of the 1993 LMPA.

I have done extensive academic research on the history of the medical practice act and midwifery licensing laws in California and maintain an archival library on the topic.

Senator Lucy Killea, author of SB 350 ~ the Licensed Midwifery Practice Act of 1993 (LMPA)

The major sources of documentation quoted here are California medical practice legislation from 1876 to 1993, microfilm copies of state legislature bill sets, official letters of legislative intent, daily newspapers of the era, medical periodicals and the copious records provided by the Directories of Licentiates published yearly by the Medical Board.

I’ve been personally present at virtually 100% of the public meetings and major events relative to the implementation and administration the midwifery licensing program. I am called upon by Legislative staff, MBC staff members and attorneys for information about customary practices of direct-entry midwifery or to help determine the logic of the administrative issues relative to licensing.

I administered a professional liability group policy for community-based midwives in three states between 1998 and 2001. More recently I was the lead author of the official Standard of Care for California LMs adopted into regulation by the Medical Board under the authority of SB 1950.

Senator Liz Figueroa, author of midwifery amendments SB 1479, SB 1950 and SB 1638

In July 2004, I requested and Senator Figueroa agreed to carry legislation creating MBC Midwifery Advisory Council, which was accomplished by SB 1638 in 2006. This was the 3rd time that Senator Figueroa passed amendments to the LMPA. Currently I am the Chair of the MBC’s Midwifery Advisory Council.

I was an L&D and ER nurse for 17 years before I cross-trained into midwifery. Due to the ‘poison pill’ in the Nurse Midwifery Practice Act (mandatory obstetric supervision), I chose not to become a certified nurse midwife (CNM) and instead trained as a non-medical midwife. I am a nationally certified professional midwives (CPM) under the North American Registry of Midwives and California licensed midwife #041. I practice under the regulatory authority of the Medical Board.

As an LM, I currently provide home-based birth services and hospital-based support services, thus I am personally familiar with the issue of physician supervision. As with all other licensed midwives in the state who attend planned home births (PHB), I myself do not have a physician supervisor.

Like Ms. H, I have informal relationships with a few obstetricians who, on occasion, permit me to consult with them and who collaborate with me relative to medical evaluation or hospital care of my clients. Midwives have always had informal backup arrangements for their clients, which are identified antepartum and documented in the client’s record.

As for the issue of safety and efficacy of PHB, it must be noted that a consensus of the scientific literature identifies the physiological management of normal birth

(a) in essentially healthy childbearing women

(b) as provided by experienced midwives in independent birth centers and client homes

(c) with access to appropriate obstetrical services for complications

(d) to be equally as safe as obstetrically-managed hospital births for this same healthy cohort

These studies assign all complications and mortality to the midwifery cohort, even though the mother may actually have transferred to the hospital at the start of labor, the intrapartum was medical managed and the birth attended by an obstetrician.

As for efficacy of PHB care, the scientific literature identifies a dramatic reduction in the number of obstetrical interventions by a factor of two to ten times, with a CS rate under 4%, while preserving the same level of perinatal wellbeing. When maternity care for healthy women adheres to the principles of physiological management, a non-medical setting is as safe as any other location, with the added bonus of conserving expensive medical resources. [encl #1]

Institutional Memory For MBC & Midwifery

Institutional memory is a particular issue in regard to the MBC agency staff person assigned to the midwifery licensing program, as there have been 8 different employees in the first eleven years of the program, starting with Tony Arjil in 1994. The position was sequentially filled by Gloria Maceus, Gizzelle Biby, Kim Marquart, Teri Kizer, Susan Lancara and Herman Hill. Mike McCormick is currently assigned to the staff position. {note-2-self — update the list, ck. names and spelling for Cheryl Thomas, Robin Cook, Kim Kirkmeyer,

During the first decade of the midwifery licensing program, the job went unfilled for long stretches. Employment of each of the six initial employees lasted only 6 to 18 months. This high turnover and lack of continuity resulted in much confusion for both the MBC staff and for California midwives. In addition, there have been four different executive directors since 1994.

In light of these circumstances, I offer the following background facts as a source of “institutional memory”. The majority of individuals who worked for the midwifery licensing program or participated in the Midwifery Licensing Implementation Committee are either still working for or are available to the MBC and should be able to corroborate the information provided by me. Audio tapes and written transcripts also exist for much of the material relative to the Midwifery Implementation Committee.

Historical Background ~ Original 1917 & 1949 Midwifery Legislation

State certified non-nurse midwifery already has a long and honorable tradition, going back to 1917, when the first midwifery certification law was passed. The original 1917 midwifery amendment was written entirely by physicians, a time before women had the right to vote and without the knowledge or input from the public or practicing midwives of the era.

The1917 physician-authors of the original midwifery statue were primarily concerned with setting criminal penalties for midwives who engaged in the unauthorized practice of medicine. The title of the 1917 enactment reads:

to add a new section …relating to the practice of midwifery, providing the method of citing said act and providing penalties for the violation thereof”.  

This idea is best captured by the idea of ‘girl toys’ and ‘boy toys’ –the male profession of medicine want to be sure the female profession of midwifery did not encroach into their territory and use any of the ‘boy toys’ associated with the practice of medicine. This was a strictly unilateral undertaking, as the girl toys of midwifery were not likewise protected from the encroachment of the medical profession.

However, once passed, midwives were generally compliant with all aspects of its provisions. Unfortunately, earlier forms of the Medical Board (i.e., the Board of Medical Examiners) were not equally interested in being cooperative with the midwives of that era.

In the 73 years of state regulated non-medical midwifery practice (1917 to passage of the LMPA in 1993) there was a total of 217 California certified midwives. Only 3 disciplinary actions are recorded in the Directories of Licentiates from 1918 to 1950 and all three are for overstepping the identified non-surgical scope of midwifery practice established in AB 1375.

State certified midwives Marie Caron (FX-83 -1918), Elena Rinetti (FX-97 -1918) and Caterina Reorda, a graduate of the Royal University of Turin, Italy (F-58 -1925) all had their licenses revoked or suspended for unprofessional conduct, citing “illegal operation” as the cause of action.

It appears from the various documents of the era, including the Directories of Licentiates, that no midwives were ever prosecuted for the illegal, unauthorized or uncertified practice of midwifery, either before or after the passage of the original 1917 provision, and through out the balance 20th century until the Bowland case in 1974 — a total of 97 years (1876-1973).

In 1949, at the request of the Board of Medical Examiners, a bill was passed (SB 966) that repealed the application process for midwifery certification (Article 9) and eliminated the midwife classification from the list of certificates issued by the BME. The reason cited was a lack of interest in midwifery and the opinion that “midwifery was a dead class”.

In the 32 years following the original passage of the 1917 midwifery provision, a qualifying midwifery training program in the state of California was never approved by the Medical Board. This meant that California residents were unable to meet the criteria for licensing, unless the relocated to another country for training.

The midwifery provision did not stipulate any courses in professional midwifery itself, but rather mandated that midwifery students complete the same classes in anatomy, physiology, hygiene and sanitation and a 165-hour course in obstetrics taken from the medical school curriculum for physicians and drugless practitioners’ educational standards. Ironically, while mandating the same medicalized education as physicians, the provision itself forbid licensed midwives to utilizing the medical skills taught to them in these classes.

Because there were never any Board approved midwifery training programs, the only source for new applicants were either medical students that had completed the obstetrical portion of a medical school curriculum or foreign-trained immigrants – primarily Japanese – who were licensed by reciprocity from one of Japan’s 27 midwifery schools. By far, the largest categories of California certified midwives were Japanese and Italian immigrants.

When one considers that the US was at war from 1941 to 1945 with both Japan and Italy and that the Japanese population of California was interned out of state for the duration of WWII, it is not surprising that there were only 9 applications for a midwifery license in the entire decade preceding the request by the Board to eliminate the licensing program. The last two applications in 1947 and 88 (both denied) were for licensing by reciprocity from Japan and Italy.

The legal impact of SB 960 on the practice of already certified/licensed midwives was nil and the 46 midwives who held valid licenses at the time were unaffected. The midwifery provisions defining the extent and the non-medical character of midwifery (Section 2140) and those concerning penalties for unprofessional conduct were left intact (section 2400-08). No criminal penalties for lay or uncertified practice were stipulated in this revision. The last state-certified midwife under Article 24 declined to renew her license in 1990.

After the repeal of the category of ‘midwife certificate’ —1949 to 1993 — no licensing was available in California for non-nurse midwives. However, the practice of traditional midwifery was not statutorily prohibited in either the original 1917 statute or the 1949 repeal of the direct-entry midwife application, i.e., no provision in the original midwifery licensing law or its 1949 amendment created a public offense defined as ‘practicing midwifery without a license’. Under democratic forms of government, what is not expressly outlawed is legal.

A convention of all form of government licensing is exclusive entitlement in both title and scope of practice in the domain of one’s license. Unfortunately, midwives licensed under the 1917 provision did not enjoy this protection. Unlike the professions of medicine, nursing, dentistry, chiropractic and other allied healthcare disciplines, midwives have never been granted exclusive entitlement to their scope of practice as the regulated profession of midwifery.

The original midwifery statue was primarily concerned with setting criminal penalties for what physicians defined as the illegal practice of medicine by midwives, that is, the use of drugs and “instruments” (i.e., primarily obstetrical forceps). The 1917 midwifery provision of the MPA prohibited the use by midwives of any “artificial, forcible or mechanical means”. It also prohibited the use of instruments to penetrate or severe human tissue beyond the cutting of the umbilical cord.

These activities were specifically defined in regard to childbirth as an unauthorized practice of medicine and thus illegal if performed by a midwife (except as a medical emergency under section 2063). As for the entitlement issue, these same physician-authors quietly side-stepped the complexities that licensure created by not including exclusive entitlement language for midwives in the 1917 provision.

One practical reason for not addressing this issue is that physicians and midwives share a common patient base – that is, both provide normal maternity care to healthy women. Were midwives to have been granted exclusive entitlement to their own scope of practice, it would have created the crime of the ‘unauthorized’ or illegal practice of midwifery.

Physicians who also wished to provide normal maternity care to healthy women could be charged with the unlicensed practice of midwifery. This would have required that physicians either become additionally trained and licensed in the discipline of midwifery or that an equivalent midwifery curriculum be incorporated in the medical school education, thus granting physicians an exemption to the midwifery licensing law.

Between 1949 and 1993 the public demand for midwifery care continued on as before, though statistically insignificant as compared to obstetrical care. The 1949 passage of SB 966 repealing the certificate classification of ‘midwife’ withdrew the opportunity for future midwives to become state-certified “professionals”, thus demoting them to the generic classification of “lay” practitioners deprived of professional rights such as employment opportunities, teaching positions and receipt of third-party payments.

In the course of my research I could find no records indicating that the Board of Medical Examiners ever viewed the lay practice of midwifery as an illegal activity through out the 19th and 20th century until the Bowland case in1973.

Continued in Part 2 ~ Contemporary Midwifery Licensing: