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“Midwife Delivery Death Trial” judge comments: Home birth is a constitutional right

by Dec 16, 2022Home birth, Hospital birth, Infant Outcomes, Legal Issues, Legislation, Maternal Outcomes, VBAC6 comments

Correction December 18, 2022 9:05am PST: I initially entitled this article, “‘Midwife Delivery Death Trial’ rules: Home birth, including after a cesarean, is a constitutional right.” Upon reflection, I realize that this is misleading. Within the course of sharing his verdict of not guilty for the charge of child neglect resulting in death, the judge in this Nebraska criminal court commented that home birth is a constitutional right. While he said those words, and it is significant for any judge to make such a declaration, it is misleading to say that is how the court “ruled.” The ruling was not guilty. I hope the new title “’Midwife Delivery Death Trial’ judge comments: Home birth is a constitutional right” is more clear. I apologize for any confusion that resulted from the initial title of this article.


I watched every minute of the Nebraska vs. Angela Hock breech home VBAC trial which I think should be a requirement for anyone who comments on the facts of this case.

You can find all three days of testimony and the verdict on YouTube by searching for “Midwifery Delivery Death Trial,” (thank you Court TV,) but I’ll include all the videos below.

Hermine Hayes-Klein was part of the legal team representing the midwife in this case. She did an excellent job breaking down informed consent, coercion, duress, manipulation, and patient autonomy when she cross-examined the OB who reported this midwife for child abuse resulting in this litigation.

That OB’s testimony begins on day two at 2:16:09 and her cross examination with Ms. Hayes-Klein begins at 4:38:52.

Every physician and midwife who has informed consent conversations with birthing people needs to watch this testimony and consider the difference between how they communicate the risks and benefits to their patients versus manipulation.

This is especially true in situations like breech and planned VBAC/VBA2C/VBAMC where the risk communicated to parents is often inconsistent with national guidelines or medical evidence.

You can see the doctor’s mind try to pick apart this distinction at one point. How was her counsel different than the duress Ms. Hayes-Klein asks her to define? Yes, that might be “how everyone does it,” it might be how she was trained, but, it’s coercion. And that is the problem with most hospital-based obstetric care in the US.

At one point, Ms. Hayes-Klein brings out ACOG’s committee opinion on informed refusal and walks the OB through it. I had to wonder: Had this OB ever, in all her years of practice, read that document and really considered what ACOG was saying? Or was this the first time? Again, that committee opinion outlines a process that every health care provider must review, absorb, embody, and implement into their practice if they wish to practice ethically.

This is why I continually refer to medical ethics. This is exactly what I’m talking about.

Note that the mother declined an IV from the paramedics upon transfer to the hospital. One testified that he couldn’t force her, otherwise, that would be battery. Why don’t the bulk of hospital based professionals understand this concept?

No means stop. No matter the consequences. This is exactly what ACOG says relative to pregnancy care. And, this includes when someone declines a repeat cesarean. No matter what the hospital policy says, it is the right of pregnant people to decline repeat cesareans.

The bottom line is: If you have hospitals that cause trauma, under the guise of health care, and then only give people the option of a repeat cesarean within this same abusive system, they are going to seek health care elsewhere.

They are going to plan home births with midwives or unassisted births. This was exactly the mindset of the parents. A home birth with a community midwife was the only way for them to receive respectful care in their community.

40% of US hospitals require repeat cesareans for anyone with a prior cesarean through the implementation of “VBAC bans.” (ICAN, 2013) The people who birth at these facilities are not “allowed” to have a vaginal birth after cesarean. They are often counseled that VBAC is dangerous and repeat cesarean is their only available option. This directly contradicts VBAC national guidelines, the medical evidence, as well as every person’s right to medical decision making.

This is exactly what Ms. Hayes-Klein nods towards during her cross-examination of this OB. And this is exactly what the parents in this case experienced. They knew they could birth at their local hospital. But the only choice presented to them was a repeat cesarean.

The function of hospitals is to provide respectful and ethical medical care. How is it possible that we live in a time where hospitals, and individual physicians, believe it is appropriate to impose cesareans on otherwise healthy people overriding their right to decline any intervention including surgery? It is within this climate that pregnant women and people birth. It is within this climate that they seek midwifery care. It is within this climate that the parents in this case had to decide how to birth their baby. These parents understood this midwife’s training, that she was unlicensed and uncertified, and they hired her.

When individual states through their laws or rules prevent birthing people from having access to VBAC with a licensed midwife, like in Nebraska, it impacts the public health. This includes laws or rules that “require” physician supervision or collaborative written agreements. These laws and rules combined with hospitals that don’t “allow” VBAC effectively forces people into elective repeat cesarean surgery. While these cesareans are considered elective, note that they are largely coercive given the reality of VBAC bans and the difficulty of finding a hospital-based provider who genuinely supports VBAC.

As ACOG discloses in their 2019 VBAC guidelines, elective repeat cesarean section carries a five times higher risk of maternal death than planned VBAC. How many people planning VBACs are informed of this realty? How many are informed of the risk of placenta accreta which drastically increases the risk of maternal death? A poll I conducted of over 200 people pregnant after a cesarean revealed 7%. That is not informed consent.

When we look at the risk of perinatal mortality, including fetal death, the risk is higher with a planned VBAC than with a planned repeat cesarean section, but the absolute risk is still quite low. People are also entitled to this information, but they rarely receive it.

Within the course of rendering his judgement of not guilty, the judge commented that there is a constitutional right to plan a home birth. This is significant and could possibly be used as legal precedent for other similar cases.

Now does this mean the work is done? No, of course not. This was a statement within a larger ruling in a Nebraska court. Still, the fact that the judge even said these words is meaningful.

If you disagree with these parents’ choices then use all the power you have to make VBAC, vaginal breech birth, and respectful care the standard of care at your facility.

If you think ACOG says you can’t offer VBAC, or if are terrified of VBAC, then join me within VBAC Facts® professional membership and learn the facts so you can improve the care in your community. Included in membership are interviews with Ms. Hayes-Klein entitled, “An Attorney’s Guide to Navigating Informed Consent and Refusal” and “How to Navigate Forced Cesarean Threats” as well as numerous continuing education trainings on vaginal birth after cesarean.

If you want to have an in-person VBAC training at your facility, contact me.

If you want to bring a vaginal breech birth training to your facility, Breech Without Borders is an excellent option.

It is 100% within our power to change this system so people have access to respectful care. Let’s use whatever power we have, leverage whatever influence we have, and make it happen.

Jen

  Resources Cited

American College of Obstetricians and Gynecologists. (2019). ACOG Practice Bulletin No. 205. Vaginal birth after cesarean delivery. Obstetrics & Gynecology, 133(2), e110-e127. https://journals.lww.com/greenjournal/Abstract/2019/02000/ACOG_Practice_Bulletin_No__205__Vaginal_Birth.40.aspx

American College of Obstetricians and Gynecologists. (2016). Refusal of medically recommended treatment during pregnancy. Committee Opinion No. 664. Obstetrics & Gynecology, 127, e175-82. http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Ethics/Refusal-of-Medically-Recommended-Treatment-During-Pregnancy

International Cesarean Awareness Network. (2013, February 20). VBAC policies in US hospitals.

National Institutes of Health. (2010, June). Final Statement. Retrieved from NIH Consensus Development Conference on Vaginal Birth After Cesarean: New Insights: http://consensus.nih.gov/2010/vbacstatement.htm

 

The Trial

Day One

Day Two

Day Three

The Verdict

What do you think?
Leave a comment.

What do you think? Leave a comment.

6 Comments

  1. I finally was able to get through this entire trial. It was very fascinating! Well done defense team, Ms Hayes-Klein & Associates!
    I am very curious on why the prosecution did not add the charge of Practicing Medicine with out a License or being an unlicensed midwife. I am assuming because it carried very little punishment but it still would have likely been a conviction. Could that charge still be forthcoming?
    This was very enlightening for sure.

    Reply
    • It was my understanding that the child neglect charge was a felony versus practicing midwifery without a license was a misdemeanor. I wonder if that played into how she was charged. Other charges, like practicing midwifery without a license, cannot be brought as the statute of limitations has run out.

      Reply
  2. This is such a nuanced situation because:

    – Nebraska is horrifically behind on the legal protections of birthing people

    – the person being investigated in this case is not a certified nurse midwife, nor a community midwife according to any consensus, lineage or practice of midwifery, regardless of licensure. She is unlike any midwife who practices in other jurisdictions, because she received no standard of midwifery training – did not apprentice, did not perform supervised births, did not complete coursework or demonstrate competency according to any consensus of midwives. I blame Nebraska law is the reason she was practicing in the first place – consumers in Nebraska choose between medicalized hospital birth, free birth or birth with someone that simply advertises themselves as a “midwife” yet is not accountable to anyone.

    – the hospital this birthing person was transferred to *does* in fact routinely perform VBACs, and the same hospital has one of the lowest NTSV cesarean rates in the country. No, they don’t routinely deliver breech vaginal births, though occasionally they do.

    – the person being investigated reassured the birthing family on multiple occasions that she had experience delivering a breech birth. She did not. Evidence of this is clear as she used a pair of “clean” – not sterile – bandage scissors to cut an episiotomy in the ambulance. I know of no midwife of any credential who would accept this as standard of care.

    – Because of politics this case had become a “birth and midwifery freedom” vs the medical industrial complex and patriarchal, antiquated laws. Which is an important conversation but it absolutely undermines the trauma endured by this family at the hands of this person who we might consider as impersonating a midwife.

    – it makes me sad as a citizen of Nebraska that this person’s actions no only caused trauma to this family and the medical professionals who cared for them, but also further compromised the need for patient autonomy and birth sovereignty in Nebraska via ethical and professional midwifery care. I’m not referring to CNMs or CPMs – simply a midwife trained via apprenticeship who demonstrates competence and attends community birth.

    It makes me sad that nationally-oriented parties are using this case as an example without engaging with the nuances of the community involved. Thus case is incredibly traumatic and this treatment of it does not alleviate that trauma whatsoever.

    Reply
    • Ugh, so annoying when people come spouting opinions on facts that are not true and for which there was no evidence presented at trial! Midwife told parents she had experience on “multiple occasions”? Where did you get that from– some since-disproven newspaper slander? Your claims regarding her training are just more slander.

      Reply
  3. re: “…The function of hospitals is to provide respectful and ethical medical care….” Sadly, no: the function of hospitals is to make money, and as long as c/sec pays more than VBAC, both immediately & long-term, that’s what they’ll push. Though of course they want us to BELIEVE that they’re there to provide medical care. The job of the OB is to follow the Standard of Practice, even if it’s nonsense.

    Reply
  4. Again, Jen Kamel hits a home run on the right for people to make decisions about their health care, even when their doctors do not agree with those decisions!

    Reply

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Jen Kamel

Jen Kamel is the CEO and Founder of VBAC Facts®. Since 2007, their focus has been to provide objective, accurate information about the data available on vaginal birth after cesarean and repeat cesarean to parents, professionals, policymakers, and the court so all decisions can be informed, ethical, and just. In this capacity, she creates educational courses for parents and CE trainings for professionals as a Continuing Education Provider through the California Board of Registered Nursing. She speaks at conferences around the world on the VBAC evidence as well as presents Grand Rounds at individual hospitals. In her ongoing efforts to educate policymakers on the VBAC evidence, she has testified multiple times in front of the California Medical Board and a variety of other regulatory committees as well as have consulted on legislation and regulation in multiple states. She serves as an expert witness and consultant in legal proceedings so the court may make its deliberations on the medical research rather than conventional wisdom.

Jen Kamel

Jen Kamel is the CEO and Founder of VBAC Facts®. Since 2007, their focus has been to provide objective, accurate information about the data available on vaginal birth after cesarean and repeat cesarean to parents, professionals, policymakers, and the court so all decisions can be informed, ethical, and just. In this capacity, she creates educational courses for parents and CE trainings for professionals as a Continuing Education Provider through the California Board of Registered Nursing. She speaks at conferences around the world on the VBAC evidence as well as presents Grand Rounds at individual hospitals. In her ongoing efforts to educate policymakers on the VBAC evidence, she has testified multiple times in front of the California Medical Board and a variety of other regulatory committees as well as have consulted on legislation and regulation in multiple states. She serves as an expert witness and consultant in legal proceedings so the court may make its deliberations on the medical research rather than conventional wisdom.

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