Free Birthing: A Health Lawyer’s Perspective

What is free birthing?

An article recently came out in the National Post called “Rise of the 'free birthers': These women are choosing to give birth without medical help — and at least one baby has died”.

The article explained that “free birthing” is a movement of pregnant women rejecting the medicalization of birth and intentionally delivering babies outside the health care system. They have their babies without the presence of a health professional, and in some cases, do not seek prenatal care either. Some seem to recognize the need for a health professional in the event of an emergency, but trust they will know (and be able to be transported to a hospital) if and when that time comes.

It appears to be a practice dominated by “privileged women in developed countries”. A few persons mentioned in the article are from Canada.

There is no shortage of criticism for “free birthers", who have been called insane, arrogant, selfish and far worse.

So, why do people do it?

There seems to be significant mistrust in not only physicians, but the midwives and other allied health professionals who are trained in prenatal care, labour and delivery.

At least one part of the criticism is likely valid. There is plenty of evidence to suggest that interventions, like episiotomies and C-sections, have historically been performed more than is necessary. Convenient scheduling, financial incentives and social status of the patient appear to be relevant factors. A 2017 study found that C-sections “are more likely to be performed by for-profit hospitals as compared with non-profit hospitals”. And there are certainly times when health care providers seem to forget about the patient’s right of informed consent, giving medicine and other interventions when alternatives have not yet been discussed.

However, there also appears to be a complete disregard for scientific evidence and a tendency to attribute ill-intent to health professionals. One free birth website explains

“Individuals who mistakenly believe they are “trained” in this or that procedure, or in diagnosing this or that outcome often don’t know what they’re talking about. They misinterpret what’s happening during a birth, step in to “save” the baby or the mother, and create issues and safety concerns when there weren't any, sabotaging what could have been a spontaneous physiological event”.

The same website states that free birth is based on “the most current scientific evidence”. This is likely false; in fact, women who choose to free birth may not be receiving evidence-based health information.

Overall, it seems that some women in developed countries may be taking for granted that very few women and children die from childbirth because of the access to care available. And some have been deeply traumatized by birthing experiences that the risks of free birthing seem to pale in comparison to a more institutional birth.

Is it safe?

The author noted that at least one free birther’s baby died following the birth. She reviewed data from Statistics Canada suggesting there is a higher rate of stillbirths among “non-hospitals” births versus hospital births. This is logical because some interventions, such as emergency C-section, cannot be performed outside a hospital.

The World Health Organization (WHO) states that:

Most maternal deaths are preventable, as the health-care solutions to prevent or manage complications are well known. All women need access to antenatal care in pregnancy, skilled care during childbirth, and care and support in the weeks after childbirth. Maternal health and newborn health are closely linked. … It is particularly important that all births are attended by skilled health professionals, as timely management and treatment can make the difference between life and death for both the mother and the baby.

The resource explains that women usually do not get the care they need because of poverty, distance, lack of information, adequate services and cultural practice, and that improving maternal health is a key priority for the WHO.

Is it legal?

While it is not illegal to give birth outside a hospital, free birthers certainly face some legal risks.

For one, the free birthing leaders could potentially be found to be providing medical advice. At least one sells a guide on free birth and offers a virtual postpartum visit. They offer a package that includes advice about emergencies and how to identify and manage them. They promise to “ensure that all your birth-related questions are answered”. It seems feasible that a regulatory body that governs physicians or midwives could decide to step in and potentially begin legal proceedings for practicing without a licence. Of course, this can be more complicated in the era of the internet where the advisors and clients are not in the same province or state. (Although the Ontario College of Pharmacists did manage to take down an illegal online international pharmacy in which the drugs never entered Canada, as there was a sufficient connection to Ontario).

Partners and others who help women free birth also face legal risks. In Ontario the Regulated Health Professions Act, 1991, contains a list of “controlled acts”. These are risky and invasive actions that can only be performed by certain authorized health professionals. On the list of 14 controlled acts is “Managing labour or conducting the delivery of a baby”. While the law makes an exception for “rendering first aid or temporary assistance in an emergency”, it is clear that free births are not happening in emergency circumstances.

The mothers who free birth also face potential liability. Fetuses are not legal persons and do not have rights. However, the rights of a child crystallize upon birth.

In Ontario (and other jurisdictions with similar laws), a child is considered to be “in need of protection” where

·        there is a risk that the child is likely to suffer physical harm because the person in charge did not adequately care for or provide for the child

·        the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment

In such cases the Children’s Aid Society may apprehend the child from the parents. There have been cases where a child was apprehended shortly following a free birth where the parent failed to seek a pediatric consultation.

Further, persons who have reasonable grounds to suspect a child is in need of protection have a legal duty to make a report to Children’s Aid Society. That duty could apply to persons who know about a dangerous situation, even if they are not physically present.

Finally, it is a crime to fail to provide the necessaries of life. Parents have been criminally charged in Canada for failing to seek medical care for their child. Our legal system is not particularly sympathetic to parents who choose their personal values and beliefs over the health of their children.

What can be done instead?

Clearly there are women who feel like the system has failed them and that their views are not respected. They might not be wrong. The fact that a free birthing movement has emerged is evidence that something needs to change.

Women have a right to provide informed consent. In Ontario this means a right to be informed of the risks, benefits, side effects, alternatives, and likely consequences of declining the proposed treatment or intervention. Other jurisdictions have similar requirements.

Some physicians, midwives, and labour and delivery nurses may need to reflect on whether they are obtaining true informed consent prior to administering treatment. It doesn’t matter that the proposed treatment is in the patient’s best interests or that you know the patient will consent – the process of informed consent is vital (and a legal right). Patients have a right to refuse what has been offered to them.  And if you expect compliance, you should know that in Ontario it is considered professional misconduct for a physician, nurse or midwife to perform a service for which consent is required without first obtaining the consent.

If a woman does not want to lie down on a hospital bed, that should be discussed rather than rejected outright. With more understanding on both sides, a patient may choose the hospital bed, or the health care provider may be more supportive of the patient laboring and delivering in other positions.

Women ought to be educated about the value of prenatal care and the serious, sometimes fatal, risks of labour and delivery. Health professionals providing prenatal care may wish to educate their patients about these risks proactively, as this may reduce the number of women pursuing a free birth based on false information.  This is also a public health issue that could potentially be addressed through a public health campaign.

For those who fear being pressured or coerced, a doula can be a wonderful option. Doulas are “labour coaches”. While they are not licenced health professionals, they provide non-clinical support to women during childbirth. They can suggest position changes, provide advocacy, offer encouragement, facilitate communication, and assist with informed decision-making. A 2013 study found that:

Doula-assisted mothers were four times less likely to have a low birth weight (LBW) baby, two times less likely to experience a birth complication involving themselves or their baby, and significantly more likely to initiate breastfeeding.

Remarkably, the presence of a doula leads to better birth outcomes and increased satisfaction about the birth experience. Researchers have suggested that women be offered doulas “as part of a menu of choices in the prenatal period” as “a way to empower women to be actively involved in preparing for birth and developing self-efficacy in maternal health behaviors”.

For those who dislike the medicalization of birth, midwives should be strongly considered. Midwives are trained health professionals who, according to the Association of Ontario Midwives, value a birth without unnecessary medical interventions, prefer to avoid epidurals and even perform deliveries at home.

Home births are a legal option, as are births at a birth centre. With a midwife, appropriate supplies can be on hand. Family members and friends can be present, if the woman wishes.  The article that inspired this blog post mentioned candles, crystals and burning sage. These do not have to leave the picture simply because a midwife is present.  The Ontario government has stated that “Working with a midwife, families will be able to incorporate their own culture, traditions and preferences in their experiences.”

There should be no reason that women place their lives, and the well-being of their infants, at risk because their right to consent has been ignored, their wishes disrespected, or they fear they will be (or have been) traumatized during labour. There is work to be done to make our health system better able to serve those who are inclined to reject it.

Women who want the birthing process to be natural, spiritual and on their own terms should feel empowered and be able to do so - with the presence of a supportive and appropriately-trained health professional.






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