Law

Home birth on the defence

Judith Alldritt,Joann Webb December 10 1979
Law

Home birth on the defence

Judith Alldritt,Joann Webb December 10 1979

Home birth on the defence

Law

If there’s one emotion new mothers may share, besides the joy and depression of giving birth, it’s frustration at a less than satisfactory hospital experience. The place is so geared to sickness that childbirth sometimes seems reduced to insignificance. But the only alternative to hospital delivery in Canada is home birth, which is frowned upon by the medical establishment. When Elizabeth Ambery, a Victoria, B.C., homemaker in her mid-20s, found herself pregnant for the second time, she became one of the growing number of Canadian women opting for home birth. But while there was nothing out of the ordinary in her decision, the result was tragic, and may have seriously damaged the still small but significant home-birth and midwifery movements. The baby was stillborn and midwife Margaret Marsh was charged with criminal negligence. And until next March, when the case against Marsh will be decided, the movements’ attempts to gain legitimacy and acceptance in Canada could be frustrated by the publicity.

At first glance, the Ambery-Marsh case seems to give credence to established medicine’s view that home births are both dangerous and unnecessary. The home-birth and midwifery movements, not surprisingly, argue that the case is a special one and does not detract in any way from the rightness of their cause. After all, women have been giving birth at home with the assistance of midwives as long as there have been babies. Even today in Britain, Sweden, the Netherlands and many other European countries, licensed midwives often attend women through all stages of pregnancy, delivery and postnatal counselling.

But in Canada, the practice of midwifery by anyone but a doctor is not even sanctioned in law, except in Newfoundland. In B.C. and Ontario, midwives are forbidden by law to advertise or practise their skills; and in all provinces save Newfoundland (where there is a midwifery licensing program but only a dozen practitioners) there is no legal recognition and no licensing program. Thus midwives who operate in most of Canada do so with considerable risk and difficulty: though legally allowed to attend a home birth if a doctor is present, that concession means little since only a handful of doctors across the country will attend a home birth (just six in all of Toronto, for example).

And though the safety question in home birthing is only beginning to be debated publicly, the demand for birth alternatives to hospitals continues to grow. “Midwives are responding to a need,” says Marie Hutchinson, a director of the Victoria Home Birth Research Association. “Women are choosing this method despite the current lack of support from the medical profession.” But those looking for a midwife find a confusing mixture of midwives trained abroad, self-taught “birth attendants” and country grannies. No matter what their training, midwives are operating mostly in the twilight zone of the law and so, for self-protection, charge for counselling (often $50-$75) but not for delivery.

Faced with this messy state of affairs, Elizabeth Ambery and her husband, Mark, eventually managed to find a midwife for the birth last July, but at the last minute the midwife couldn’t make it. On her recommendation they

tried Margaret Marsh, a 52-year-old former doctor. And, by Oct. 9 they were in Victoria County Court testifying in the criminal negligence trial against Marsh, who was charged with causing the death of their son, Nigel, by “omitting to provide adequate medical assistance”—the first such charge against a birth attendant in Canada.

It was a breech birth, always difficult, even in the hospital, and the boy emerged bluish and not breathing. Marsh’s efforts to revive it failed. However, medical assistance was never sought, Judge Peter Millward was told. He was also told of rather unorthodox procedures employed by Marsh, including the taking of what she called a “vitamin count” which consisted of placing her hands on Ambery’s belly and doing a “reading.”

On Nov. 7 Judge Millward added a complication of his own when he ruled that “the living fetus, within the body of the mother, developed to full term, is a person ... notwithstanding the fact it failed to be born alive.” His ruling, which was a direct response to the defence contention that nobody can be charged with criminal negligence causing the death of someone not yet born, could have far-reaching consequences, not just for midwifery but for the medical profession. “It is the first time [in criminal law] an unborn human being has been accorded the rights of a human being in Canada,” says Deborah Acheson, solicitor for the Victoria association.

Marsh will be required to defend her conduct when the trial, adjourned in November, continues in March. Even if acquitted on the criminal negligence charge, which carries a maximum penalty of life imprisonment, she faces additional prosecution for practising midwifery, which in B.C. is punishable by a $100 fine for the first offence.

The fact that Marsh was charged— never mind any conviction—has put home-birth proponents on the defensive. Says Toronto lay midwife Theo Dawson, who works with a doctor: “I think that if a baby died at home, and it can be proven that it was a case of negligence, it does damage to the home-birth movement. But this case is not trying home births. It is trying that particular woman.” Marsh is untypical of midwives because of her background as a doctor. She was suspended from the B.C. medical registry in 1971 when she was judged unfit for practice, but because the Ambery matter is before the courts, no details can be provided.

As significant as the prosecution of Margaret Marsh may be in the homebirth argument, it’s unlikely to change many minds on either side. The issue is as emotional as it is professional. It isn’t made any simpler, either, by the lack of reliable statistical information, which is compounded by the furtive nature of the work itself. So if the midwifery and home-birth movements have a case, they have been left with the near impossibility of proving it. Which is one reason the Victoria Home Birth Research Association was formed last summer, and one reason the Registered Nurses Association of British Columbia proposed a Registered Nurse Midwifery program last spring.

Phyllis Curry, a British-trained nurse midwife who has attended home births with an Ontario doctor, believes midwifery has met such strong resistance because it is even more political than abortion. “In abortion you are asking a doctor to attend you, but in birth women are saying, T want my own power.’” She supports the view, expressed by some feminists, that birth belonged to women until men took over the field of obstetrics and began to usurp women’s control of their bodies and to discredit the role of midwives. But whether the issue is essentially political or simply a question of safe, happy births, the Ambery tragedy shows that people will find alternatives even when they’re denied them. “It’s just like the abortion issue,” says Jeanne Celona, a 29-year-old gallery director in Victoria. “If people are going to do it anyway, then we’d better get our act together and make damn sure it’s safe.”

Judith Alldritt

Joann Webb

June Rogers