The Midwife's Tale: Old Wisdom and a New Challenge to the Control of Reproduction


THE MIDWIFE'S TALE: OLD WISDOM
AND A NEW CHALLENGE TO THE
CONTROL OF REPRODUCTION

Dianne L. Martin*

I. INTRODUCTION

Reproductive rights for women remain elusive and contested. All
over the world poor women continue to be denied access to even basic
health care and information. Privileged women also face the dehumanizing
effects of a fetal rights campaign which successfully "fetishizes the fetus,"'
as women's demands for reproductive choice2 are balanced against the
separately constituted interests of fathers and the state in the production and
protection of the ultimate innocent third party-the fetus.'

* Professor of Law, Osgoode Hall Law School of York University. B.A. 1973,
University of Toronto; LL.B. 1976, Osgoode Hall Law School; LL.M. 1986, London
School of Economics. The author has practiced in the fields of criminal law and human
rights law, and has recently co-authored a book with Clayton C. Ruby. Clayton C.
Ruby & Dianne L. Martin, The Criminal Sentencing Digest (1993).

The author wishes to thank Mary Anne Peters of McMaster University; Leslie
Paine and Gail Robinson of Osgoode Hall Law School; and the Ontario Association of
Midwives.

The insight that recognized the construction of the fetus as a fetish in the politics
of reproduction comes from the work of Rosalind Pollack Petchesky. For a discussion
of the ultra right's deliberate use of the artificial construct-the image of the
disembodied fetus-as a political tool, see Rosalind Pollack Petchesky, Abortion and
a Woman's Choice: The State, Sexuality & Reproductive Freedom xiv (2d ed. 1990).
Petchesky considered the ideological force of the image in an earlier work, Rosalind
Pollack Petchesky, Fetal Images: The Power of Visual Culture in the Politics of
Reproduction, in Reproductive Technologies: Gender, Motherhood and Medicine 57
(Michelle Stanworth ed., 1987).

2 See infra notes 24-26 and accompanying text.

3 Shelley Gavigan in her discussion of "foetal personhood" notes that the pregnant
woman is increasingly cast as an adversary to a separately constituted "foetal person":
"The foetus is presented as helpless and vulnerable, the most innocent of innocent
victims." Shelley A.M. Gavigan, Beyond Morgentaler: The Legal Regulation of
Reproduction, in The Politics of Abortion 117, 130-33 (Janine Brodie et al. eds.,
1992). This separate constitution of the fetus in law and in public discourse is
shadowed and marked by scientific advances in the understanding of fetal life. In
Canada, a Royal Commission Inquiry into new reproductive technologies has
characterized feminists who are concerned by the implications of this technology as
being "anti-technology" and as depriving infertile women of choice. See Jamie
Cameron, Fighting Infertility: Please Respect My Choice, Globe & Mail, Nov. 5,
1990, at A13 (caption: "Women unable to have children without medical help run into
arguments about designer babies and tinkering with the mystery of life. But it's a
physical problem and should be fixed the same way we fix problems with kidneys and



Columbia Journal of Gender and Law

This paper considers an aspect of the struggle for reproductive rights
that has received relatively little attention but merits more: the story of
midwives. Midwives are the unsung and undervalued women who deliver
a significant percentage of all babies born in the world today, and are
recognized by the World Health Organization of the United Nations (WHO)
as the most appropriate caregivers in normal childbirth,4 regardless of the
availability of (primarily) male physicians.' Even in jurisdictions where
they are recognized, such as the United Kingdom, midwives are struggling
to preserve their autonomy and their role as supporters and advocates for
women in childbirth and reproduction, and are frequently relegated to a
place as second best to the preferred services of an obstetrician.6 In other
jurisdictions midwives must fight for the right to practice at all, and along
with the women who seek their services, are held to the margins of the
alternative health care movement. 7 In the United States they are recog-

livers."); Susan Pigg, Probing High-tech Baby Making: Commission Examining
Mistakes, Miracles, Toronto Star, Sept. 12, 1990, at A23. The other side of this
technology criminalizes poor and minority women for "fetal abuse." See Doctor Seeks
Crackdown on Boozing Mother-to-be, Toronto Star, July 20, 1992, at A4. The same
technology permits sex-selection and overt devaluing of female fetuses. See Rod
Mickleburgh, MD to Defend Fetus Sex Test, Globe & Mail, Nov. 15, 1990, at A8;
Linda Hossie, Gender by Choice, and Guess Which One? Boys are Preferred as New
Technologies Let Parents Pick Sex, Globe & Mail, Aug. 14, 1992, at Al (detailing the
success of and controversy around a company called Gametrics Ltd., based in Alzeda,
Montana, which markets sex-selection services through sperm separation all over the
world, and noting that boys are preferred everywhere, including in the United States).

' This statistic, and the WHO endorsement, is frequently cited in midwifery
literature. See, e.g., Sheila Kitzinger, Why Women Need Midwives, in The Midwife
Challenge 1, 9 (Sheila Kitzinger ed., 1988) (stating that 75 % of all babies born in third-
world countries are delivered by midwives).

5 Id.
6 British midwives face enormous pressures both as working women and as

midwives. See infra notes 91-108 and accompanying text. For a discussion of the
dilemma faced by British midwives as described by a member of the British Association
of Radical Midwives, see Janet Jennings, Who Controls Childbirth?, 12 Radical Sci.
J. 9 (1982). For a more current discussion, see Caroline Flint, On the Brink:
Midwifery in Great Britain, in The Midwife Challenge, supra note 4, at 22, 22-39.
For a detailed analysis of the control mechanisms in place, see Dianne L. Martin, The
Control of Reproduction: Law, Medicine and Women; Midwives, Subjects and Agents:
A Study in Social Control (1987) (unpublished LL.M. thesis, London School of
Economics, on file with the Columbia Journal of Gender and Law).

7 The marginalization of midwives in the developed world is being resisted in
grass root campaigns as the newsletters of midwifery associations attest. See, e.g.,
Joan Donley, Midwives' Dilemma, The Alberta Midwifery Taskforce and Alberta
Association of Midwives Newsletter (March, 1991); see also Germaine Greer, Sex and
Destiny: The Politics of Human Fertility (1984). For a theoretical discussion focusing
on the United States, see Sheryl Burt Ruzek, The Women's Health Movement:
Feminist Alternatives to Medical Control (1978).

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nized in only a few states as fully autonomous caregivers, s while in Canada
they went underground, all but disappearing until the resurgence of the
women's health movement and government concern about skyrocketing
health costs sparked a midwifery renaissance. 9

At the risk of attempting too large a task, this paper tells the midwife's
tale, noting the class and gender bias that mark each. chapter of that story
and suggesting that midwifery offers women an important ally in the
reproductive rights movement. The position of midwives is presented as
a lens through which to view the relationships between law, patriarchy, and
medicine in the control of women's reproductive powers.", Consideration
of the discourse around the contemporary "midwifery dilemma"" itself is
offered as a more precise tool for understanding the relationship of tactical
struggles to questions of class and gender.

Both the term and the discourse associated with the concept "patriar-
chy" are used in this paper, although, as Carol Smart has noted in consider-
ing terms such as "sexism," its widespread use in feminist writings from
different perspectives renders it somewhat problematic. 2 In this paper
"patriarchy" is used to denote both ungeneralized structures and practices

8 For a recent analysis of the American situation, see Irene H. Butter & Bonnie
J. Kay, State Laws and the Practice of Lay Midwifery, 78 Am. J. Pub. Health 1161
(1988).

' Four of Canada's ten provinces are examining the introduction of midwifery.
Ontario has passed interim legislation, will conduct examinations soon in a "grandmoth-
er" provision for practicing midwives, and will open a College of Midwifery in 1993.
See infra notes 123-26 and accompanying text. For a discussion of the earlier position
in Canada, see Brian E. Burtch, Community Midwifery and State Measures: The New
Midwifery in British Columbia, 10 Contemp. Crises 399 (1986).

10 This was the approach I took in my LL.M. thesis, Martin, supra note 6. The
critical references to "medicine" throughout the paper are meant to describe the
positions of the essentially conservative establishments (associations and colleges) which
govern the profession. All over the world, concerned, humane, and progressive
physicians struggle alongside women against the attitudes and practices described in this
paper. Moreover, it is important to remember that the case that ultimately defeated the
criminalization of abortion in Canada, did so in the context of Dr. Henry Morgentaler's
crusade for abortion rights for women. Dr. Morgentaler offered himself for criminal
prosecution and spent months in jail in defiance of a law that he saw as discriminatory
and demeaning to women. Morgentaler v. The Queen [1988] 1 S.C.R. 30 (S. Ct.
Can.). For a discussion of the Canadian law on abortion, see Gavigan, supra note 3.
For a discussion of how "patriarchy" is used in this article, see infra notes 12-13,
46-52 and accompanying text.

" The "dilemma" as it is considered in this paper centers on the tension between
recognition as the "experts in normal childbirth" (the WHO position and that supported
by most midwives) and the personal and institutional costs associated with undervaluing
and marginalizing midwives, as discussed in Kitzinger, supra note 4.

" Carol Smart, The Woman of Legal Discourse, 1 Soc. & Legal Stud. 29, 31-33
(1992).

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of male domination and, more precisely, the anthropological meaning of
masculine-determined child-parent relationships. Indeed, this paper relates
both meanings causally. 3 Class, in the broad sociological sense of socio-
economic place, is identified as being as central to understanding the story
as gender is, both historically and in contemporary terms, since class
loyalties are often stronger than gender loyalties.14

The role of law is considered primarily with regard to the legal
challenges facing midwives who seek to practice independently from
medical domination. These challenges range from the use of professional
discipline procedures in jurisdictions where midwives are recognized, to
criminal charges and inquests in jurisdictions where they are not. Those
challenges are an integral part of the midwife's story as they have
frequently served to force midwives to make a choice between security and
autonomy, between integration into the male-dominated mainstream of
health care through legal recognition and professionalization, and continued
marginalization through reform initiatives or a-legal independence. This
paper attempts to illustrate both the gender and the class bias underlying
that choice, while suggesting that the concept of choice poses its own
dilemma.

Framing the issue as simply a choice between professionalization (itself
a contested construct 5) and marginalization, whether in telling the story
of midwifery's past, or in addressing contemporary tactics, obscures issues
of class and gender bias and further marginalizes midwifery. That is, the
portrayal of the midwifery debate as important either as a matter of choice
for the improvement of middle-class (primarily white) women's birth
experience, or as a solution to the needs of poor women, does not touch the

'3 This causal relationship is fairly commonly relied on in feminist writings about
reproduction. See, e.g., Barbara Katz Rothman, Recreating Motherhood: Ideology and
Technology in a Patriarchal Society (1989). The author begins with a consideration of
patriarchy in an anthropological sense and develops that definition into a critique of
male domination. For an analysis of the relationship between the patriarchal state and
women in Denmark, see Drude Dahlerup, Confusing Concepts-Confusing Reality: A
Theoretical Discussion of the Patriarchal State, in Women and the State: The Shifting
Boundaries of Public and Private 93, 110-13 (Anne Showstack Sassoon ed., 1987); see
also infra notes 47-50 and accompanying text for Mary O'Brien's synthesis of these
ideas.

14 In a critical discussion of the indoctrination of physicians Martin Shapiro cites
Vicente Navarro, Women in Health Care, 292 New Eng. J. Med. 398 (1975), in his
description of the distinction, which he sees as central. Martin Shapiro, M.D., Getting
Doctored: Critical Reflections on Becoming a Doctor 109-11 (1987).

15 Barbara Katz Rothman uses the term in its sociological sense in Childbirth
Management and Medical Monopoly, in Women, Biology, and Public Policy 117, 117
(Virginia Sapiro ed., 1985). See also Terrence J. Johnson, Professions and Power
19-38 (1972).

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core issues of access to health services and fundamental freedom over
reproduction for all women. 6 The choice model suggests that while it
may be pleasant (but certainly not essential) to have the assistance of a
skilled and sympatheiic woman attendant during childbirth, nothing more
than personal preference is involved.'7 The picture of the midwife as an
alternative suggests that she possesses second-class skills and is a second-
class doctor,"s acceptable for the care of poor or third-world women,
implicitly promotes medicine as the superior model of care. Both images
marginalize (and divide) the women who turn to midwives as much as they
diminish midwifery itself.

Although the historical trend all over the world has been to marginalize
midwifery and midwifery skills, 9 that process manifests itself somewhat
differently around the world depending on many factors. For example,
although Canada and the United Kingdom have both long provided
universal health care to their citizens, the position of midwifery is very
different in the two countries. The United Kingdom has recognized and
regulated midwives as an independent health care profession since 1902,
and they are numerous if underutilized there, while Canada today has no
recognized profession of midwifery, although changes are pending in a
number of provinces.

The United States continues to resist the provision of universal

16 The analysis of legal issues surrounding midwifery, and the restrictions imposed
on midwives, frequently posit the issue as one of "quality of birth." See, e.g., Gail A.
Robinson, Midwifery and Malpractice Insurance: A Profession Fights for Survival, 134
U. Pa. L. Rev. 1001, 1003 (1986) (adding to the choice rationale the importance of
midwives to American women with no other access to health services); Dale Walker,
Note, A Matter of the Quality of Birth: Mothers and Midwives Shackled by the
Medical Establishment and Pennsylvania Law, 23 Duq. L. Rev. 171, 171 (1984)
(identifying the question with respect to Pennsylvania as one of individual freedom and
choice, noting in her introduction that "[tihe criminalization or strait jacket regulation
of midwifery has had the effect of severely limiting choice of birth setting and birth
attendant in many states.").

"7 Descriptions of midwives as "labor coaches" who are a useful "addition" to the
medical team are common. See Louise Brown, Delivering Support: Expectant Moms
Who Hire Women to Coach Them Through Labour Experience Shorter, Drug-free
Childbirth Researchers Say, Toronto Star, May 28, 1991, at F1. The context of this
story was the announcement of the establishment of an independent profession.

"s This depiction has been an effective device in marginalizing midwives for the
past three hundred years, and continues today. See infra notes 19, 45, 58-87 and
accompanying text.

'" For the broad strokes of the history of midwifery, see Jean Towler & Joan
Bramall, Midwives in History and Society (1986). For a more critical analysis, see
Mary Chamberlain, Old Wives' Tales: Their History, Remedies, and Spells (1981);
Jean Donnison, Midwives and Medical Men: A History of Inter-professional Rivalries
and Women's Rights (1977); see also infra notes 58-87 and accompanying text.

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healthcare,' but is similar to Canada (although not nearly so completely
resistant) in its fainthearted acceptance of midwifery.2 In jurisdictions
like the United States, where access to health services is substantially
determined by wealth and the interests of private insurers, the market
determines the place of midwives. For example, by denying midwives
medical negligence insurance (directly or indirectly through unaffordable
premiums), or limiting access to hospital and back-up medical care, the
medical establishment effectively holds midwives to the margins.' In
countries like Canada and Great Britain, with universal health care systems,
the state assumes that role and uses the policy advice of the medical
establishment as a basis for a "best interests" regime.'

It is also worth noting that there are significant differences in abortion
rights for women in these three countries as well, although the differences
do not parallel the position of midwives any more directly than the health
care delivery schemes do. The experience of American women currently
witnessing a weakening of the protection for abortion rights guaranteed in
Roe v. Wade24 is a pattern that has not been followed in Canada. Howev-
er, the fetal "rights" debate is not over in either Canada, or the United
Kingdom. In Morgentaler v. The Queen,' the Supreme Court of Canada
ruled unconstitutional the provisions of the Criminal Code that criminalized
all abortions not authorized by a hospital-based therapeutic abortion
committee and recognized a "state interest" in fetal life. That interest has
a durable pedigree. MacNaghten's pronouncement, "[T]he law of this land
has always held human life to be sacred, and the protection that the law
gives to human life it extends also to the unborn child in the womb,"'
opened the way to recovery for damages and presaged the current rash of
fetal protection cases throughout the common law world. However, in the
context of the midwife's story, these differences mean little, as in all three

20 The lack of universal health care was once again a concern in the United States
as an issue in the 1992 Presidential election campaign, and as such, prompted popular
media discussion. See, e.g., Peg Byron, The Health Insurance Conspiracy, How
Doctors, Insurers, and Hospitals Have Left Us in Critical Condition, Ms., Sept./Oct.
1992, at 40-45.

21 See Butter & Kay, supra note 8.
22 Robinson, supra note 16; Walker, supra note 16, at 176-82.
23 See infra notes 34, 36, 63 and accompanying text.
24 410 U.S. 113 (1973). The weakening was evident in cases like Webster v.

Reproductive Health Serv., 492 U.S. 490 (1989), and in the compromise decision in
Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).

25 [1988] 1 S.C.R. 30 (S. Ct. Can.). The leading case on fetal life in Canada is,
ironically, a midwifery case. The Queen v. Sullivan [19911 1 S.C.R. 489 (S. Ct. Can.).
For a discussion of this case, see infra note 121.

26 R. v. Bourne [19381 3 ALL E.R. 615, 620 (Cent. Crim. Ct., Eng.).

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The Midwife's Tale

countries, women's traditional ally and advocate in reproductive matters has
been relegated to peripheral status. It is also clear that state recognition has
not been enough in most cases for women to preserve the midwife's
autonomy nor to resist the technological revolution in childbirth that so
dominates women's reproductive lives. In part, this is reflective of a wider
issue, an issue with deep historical roots.

In this paper the multiple factors that have diminished midwifery are
addressed as they have occurred in three jurisdictions: Canada, the United
Kingdom, and the United States. The first section briefly describes the
important differences between medicine and midwifery as a backdrop to a
discussion of the discourse and tactics that challenge midwives and their
supporters everywhere. The second section surveys the history and
historiography of the decline of woman-centered, woman-attended childbirth
and presents that story as foreshadowing the contemporary debate. Finally,
the contemporary struggle for recognition and the professionalization debate
are considered. The challenges facing midwives in Britain, where they are
numerous and theoretically acknowledged as autonomous health profession-
als, are examined as a contrast to the situation in Ontario, where model
midwifery legislation is pending. The conclusions to be drawn are few and
tentative, except as cautions, as the tactical demands of the moment must
not be judged solely from the safety of hindsight and theory. However, as
it is equally unwise to lose sight of the lessons of history or the insights of
theory, the conclusions that end this chapter of the midwife's story are
offered in a spirit of solidarity.

II. MIDWIFERY: WOMEN'S WISDOM

In beginning the project of locating midwifery within the reproductive
rights struggle, and of questioning the discourse that frames the issue as one
of professional recognition, it is important to understand how the midwifery
model addresses issues of reproductive health. The literature critiquing the
medicalization of birth is extensive 7 and the following discussion is meant

27 One of the most comprehensive discussions is found in the exhaustive report of
the taskforce which led to the development of interim midwifery legislation in Ontario.
Mary Eberts et al., Report of the Task Force on The Implementation of Midwifery in
Ontario (1987). See also Ann Oakley, The Captured Womb: A History of the Medical
Care of Pregnant Women (1986) (an important book tracing the growing hegemony of
medicalized birth); Robinson, supra note 16; Barbara Katz Rothman, In Labor: Women
and Power in the Birthplace (1982) (connecting women's loss of power over birthing
process to a male-dominated medical hierarchy); Deborah A. Sullivan & Rose Weitz,
Labor Pains: Modern Midwives and Home Birth 23-59 (1988) (linking the debate over
place of birth with the increasing number of women opting for midwife-attended
woman-centered home births and avoiding the medical establishment in hospital);

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to serve only as context for the balance of the paper.
Midwifery at its best is a holistic and woman-centered system of

practices and theory, premised on accepting, celebrating, and supporting
women. Midwives, whose training and approach are not based on a
medical model,28 come to understand reproduction as a continuum:
sexuality, fertility, pregnancy, birth, and the postpartum period are not
separate subjects, separate specialties to midwives. Pregnancy is not an
illness; labor and birth are not inherently dangerous. Moreover, women are
seen in their contexts, as social actors, not as well- (or ill-) functioning
body parts or objects for study.

This ethic is translated into midwifery practice. Midwifery standards
of practice and codes of ethics highlight a commitment to continuity of
care, informed choice (in contrast to consent), support, and non-interference
unless absolutely necessary. All of these distinctions are fundamental to
midwifery.29 The definition of midwife created by WHO, and widely
accepted as appropriate, illustrates the ideal scope of practice for midwives:

[S]he must be able to give the necessary supervision, care and
advice to women during pregnancy, labour and postpartum
period, to conduct deliveries on her own responsibility, and to
care for the newborn and the infant. This care includes preven-
tative measures, the detection of abnormal conditions in mother
and child, the procurement of medical assistance, and the
execution of emergency measures in the absence of medical
help.3"

The difference between medicine and midwifery on the question of
intrusive intervention is illustrative. It is literally one of "burden of proof."
The midwifery model, which does not reject the benefits of medical solu-
tions to medical problems, insists on proof that they are needed.3 The
medical model, which asserts that "childbirth is only normal in retrospect,"
presumes that there will be problems, and that intervention will be
necessary. Medicine trains practitioners to abstain from intervention only

Walker, supra note 16.
28 Both Kitzinger, supra note 4, and Oakley, supra note 27, make this distinction

central to their respective theses.
29 See Caroline Flint, Sensitive Midwifery (1986) (providing an inspirational guide

to midwifery practice and values); see also Jennings, supra note 6.
30 Quoted in Kitzinger, supra note 4, at ix. This definition is relied on, for

example, in Britain. See United Kingdom Central Council for Nursing, Midwifery and
Health Visiting, A Midwife's Code of Practice for Midwives Practising in the United
Kingdom 1 (1st ed. May 1986). The definition has also been incorporated in Ontario's
proposed legislation.

" See supra note 29.

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upon proof that it is not needed.3"
The reasons for these fundamental differences are to be found in the

underlying constructs of these two philosophies. Doctors are trained to
think in terms of pathology, to find something wrong and then to do
something about it. This is even more the case with surgeons, who are
trained to cut.33 The medical specialty that deals with women's reproduc-
tive "function" is that of obstetrics and gynecology. Gynecology is a
surgical specialty. The obstetrician is thus half-surgeon, and he34 controls
the procedures and protocols surrounding pregnancy and birth. Although
eighty percent of all births are normal,35 i.e., manifesting no condition that
would call for medical intervention, the approach to them is determined by
specialists in the pathological.

One of the results of this approach is an ever-increasing use of
medical/surgical intervention in the reproductive process. The so-called
"cascade of intervention" may start with a false positive diagnosis of
abnormality, perhaps identified by ultrasound. It will lead either to an
induction of labor, and the greater use of painkilling drugs frequently
associated with induced labor, and/or to electronic fetal heart monitoring,
which has its own false positive rate as well as a negative impact on the
effectiveness of the labor due to the resulting maternal immobility necessary
for this practice.

The domino of intervention may also be started without a diagnosis of
abnormality, as is the case with obstetricians committed to the philosophy
of "active management of labor." This school of thought rests on the thesis
that no labor should go on for longer than twelve hours, as labor is
dangerous to fetuses. The "cure" for delayed labor is more drugs and a

32 See infra note 38 and accompanying text.
3 For a description of the aggressive language used by surgeons about their work,

see Shapiro, supra note 14, at 175. For a discussion by a medical historian tracing the
development of the modern heroic doctor trained to inspect the 'passive patient' and
identify a pathology, see Edward Shorter, Bedside Manners: The Troubled History of
Doctors and Patients 75-139 (1985). For a recent illustration of how these attitudes
translate into practice, see Lisa Priest, Doctors 'Locker Room' Talk Censured, Toronto
Star, Aug. 15, 1992, at All (reporting that a doctor was ordered to appear before the
College of Physicians and Surgeons for a comment made to the husband of a woman
in labor that "men were lining up for his services" because of his skill at repairing
episiotomies, as he could "make virgins of their wives" and for a comment made to a
colleague in the delivery room that "the penis rules the world").

" See Oakley, supra note 27, at 251-74. Oakley directly relates male domination
of the specialty to masculinist domination of the contemporary approach to birth.

11 Dr. M. Wagner, Chief of Maternal & Child Health, Northern Region WHO,
testimony before Coroner Dr. J.G. Young, McLaughlin-Harris Inquest (Toronto, June
24-July 17, 1985) [hereinafter McLaughlin-Harris Inquest], cited in Martin, supra note
6, at 28 n.64.

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significantly higher incidence of Cesarean sections, which in turn leads to
a higher incidence of infant respiratory distress syndrome quite apart from
the effect on the mother of major surgery.36 The language used in the
literature is illustrative of the ethic: "active management" of "perfor-
mance" in labor, "improvements in management," and "management of
spontaneous labor." 37

This attitude is also reflected in the purely institutional requirements
of hospitals, which are slow to change and which rely on written procedures
and protocols to ensure uniformity and efficiency of care. A classic
example of the routinization of a useless procedure and its longevity, is the
routine shaving of the perineum. This practice was introduced at the turn
of the century to reduce infection and was proven valueless in a controlled
study in the 1920s; yet it is still practiced in more than fifty percent of
Canadian hospitals in the 1980s. as Other routine procedures, such as the
lithotomy position for delivery, with the laboring woman strapped on her
back with her legs in stirrups, have an even more doubtful heritage. It is
not merely a quaint piece of historical trivia that the ubiquitous and
:dangerously ineffective supine position for birthing entered our world
because of Louis XIV's insistence on being able to see the emergence of
"his" children from his mistresses' bodies. 39

Some of these procedures may be positively dangerous to mother or
baby; others not yet identified as dangerous nonetheless make the process
frightening, dehumanizing, or alienating.' The procedures all reflect a
technological hegemony that is patriarchal in the sense of male domination

36 Id., cited in Martin, supra note 6, at 28 n.65; Rothman, supra note 27, at
259-65; Walker, supra note 16, at 176-81. The routine use of high-tech interventions,
criticized by women and midwives for decades, has been the subject of considerable
study recently. The medical establishment is now validating the criticism and receiving
relatively wide popular coverage. See Paul Taylor, Childbirth Procedure Questioned:
Episiotomies May Do More Harm than Good, Globe & Mail, July 7, 1992, at Al
(describing a study led by Dr. Michael Klein of McGill University in Montreal, and
published in the June 1992 issue of the Online Journal of Current Clinical Trials, which
shows that there is "strong evidence that episiotomies should not be performed
routinely"); see also Gene Allen, MDs Urged to Reduce Caesarean Operations:
Method Still Used in 20% of Births, Globe & Mail, July 17, 1991, at A5; Matt
Maychak, Caesarean Rate Too High Province Told, Toronto Star, July 17, 1991, at
A12.

3 D.D. Boyle et al., An Assessment of Active Management of Primigravid
Labour, 149 Irish J. Med. Sci. 465, 465 (1981).

38 Institute of Child Health Exhibit, in McLaughlin-Harris Inquest, supra note 35,
cited in Martin, supra note 6, at 29 n.68; see also supra note 37 (for the discrediting
of routine episiotomies and other forms of intervention).

39 Walker, supra note 16, at 179.
o Greer, supra note 7, at 11-15, 20-21.

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of the processes of reproduction. That this mechanism is truly hegemonic
is evidenced in the reality that in western culture the birth of a child has
been transformed from a woman-centered physiological event into a medical
problem to be solved with efficiency, rationality, and technology.4 At the
same time, the scientific hunger for data, for information to advance the
"battle" against illness and death, blinds medicine to the value of other
models, and indeed serves other goals.42

In sharp contrast, the midwifery ethic recognizes pregnancy and birth
as neither inherently dangerous, nor inherently a matter for medicine. The
paradigm that provides the basis for a model of reproductive health is one
in which the midwife, as the expert in normal pregnancy and childbirth,
cares for the woman throughout, while the physician, as the expert in the
pathological, serves as the back up.43 The reality, of course, is that this
model is rarely approximated, let alone achieved.' The reality is that
women's bodies have been medicalized, and the advocates of integration
and normalcy devalued.4'

The role that the precepts and constructs of masculine science have
played in the struggle for reproductive rights has produced a considerable
body of feminist analysis which locates the story of midwifery within
critiques of patriarchy, both as a socio-sexual concept and as a political
construct.' Central to that body of work are the powerful insights of
feminist sociologist Mary O'Brien, herself a former midwife. O'Brien
argues that male domination of women arises from male recognition of the
fact that paternity is an alienated state that rests on historical reasoning; that

4' See supra notes 34-40 and accompanying text; infra note 56.
42 Id; see also Rothman, supra note 27, at 259-74. Continued experimentation on

poor women and third-world women, and the introduction of dangerous drugs and
procedures have only slightly abated in the face of horrendous (and costly) errors such
as the thalidomide debacle.

4 See supra note 30 and accompanying text.
It is a model that is difficult to advance. See supra note 37 and accompanying

text.
I The response of Quebec doctors to a proposal to legalize midwifery illustrates

the depth the scorn can reach. Augustin Roy, president of the 16,500-member Quebec
Corporation of Physicians, responded to the proposal by saying: "You might as well
make prostitution legal. More people are asking for prostitutes than midwives." His
colleague, Clement Richer, president of the Quebec Federation of General Practitioners,
was equally dismissive: "It's like letting an apprentice pilot take charge of a 747 loaded
with passengers." The rejoinder of Helene Cornellier, president of the 60-member
Quebec Alliance of Practising Midwives, was sharp. She pointed out: "Pregnancy is
not an illness and childbirth is not a medical procedure. Doctors who think so are
living in the Middle Ages." Andre Picard, Quebec MDs Spurn Legalizing Midwifery,
Globe & Mail, May 11, 1989, at A10.

46 See supra notes 12-13; infra note 56.

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an act of sexual intercourse is related to the birth of a new human being
from the body of the woman with whom intercourse was performed nine
months earlier.47 The alienation is reflected in legal maxims such as mater
semper certa est (motherhood is always certain) and pateris est quem
nuptiae demonstrant (fatherhood must be proven). It is manifested in the
full panoply of laws and institutions which preserve male privilege and
control generally. She poses the issue of control over matters of reproduc-
tion as a deliberate effort engaged in by men both to preserve their freedom
from the burdens of reproduction and to "resist the alienation of men from
reproductive process."" O'Brien argues that the result of this fight by
men for control over women's reproductive power has been the creation of
a patriarchal hegemony that serves to "engineer consent to their interpreta-
tions of gender and knowledge."'49 That consent creates a distorting lens
to perceptions of gender relations and dominates understanding of the
relationships of reproductive labor."

This analysis locates the issue of control over reproduction as a
struggle over knowledge: knowledge concerning reproduction, knowledge
constituting reproduction, and knowledge controlling reproduction. Barbara
Rothman offers a similar analysis and observes that about matters of
reproduction, others may have beliefs, "but we believe medicine has the
facts." 5' The power of this medical hegemony, which is rooted in patri-
archal (in all senses) relations governing reproduction is manifested in a
presumption that medical "truths" are prima facie "true." It can be
difficult to unpack that belief system and Rothman reminds us that
"obstetrical knowledge, like all knowledge, comes from somewhere; it has

47 Mary O'Brien, Hegemony and Superstructure: A Feminist Critique of Neo-
Marxism, in The Politics of Diversity: Feminism, Marxism and Nationalism 255
(Roberta Hamilton & Michele Barrett eds., 1986).

48 Id. at 263. In an earlier work O'Brien is even more explicit.

Marriage in its primeval form is not a contract between a man and a woman,
but a treaty among men, a mutual back scratching that restores integrity to male
reproductive consciousness. Male potency is an amalgam of the power to
appropriate, supported by the socially bestowed right to do so, and dependent
on suspicious cooperation between men.

Mary O'Brien, Feminist Theory and Dialectical Logic, in Feminist Theory: A Critique
of Ideology 99, 109 (Nannerl 0. Keohane et al. eds., 1982).

4 O'Brien, supra note 47, at 263.
50 O'Brien points out that "[i]t is odd indeed that we still have to argue that

reproduction is a form of knowledge with profound epistemological significance for
women and men, and the fact that the argument must be made is itself a massive
triumph for patriarchal hegemonic practice." O'Brien, supra note 47, at 263.

11 Rothman, supra note 13, at 173.

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a social, historical, and political context. Medicine does not exist as
something 'pure,' free of culture or free of ideology. 5 2 Midwifery, by
offering a different paradigm, assists in challenges to a view of women and
reproduction that has served to deny reproductive autonomy. The medical
and midwifery models represent in this sense two different ways of
"seeing" which have had and continue to have profound social and political
implications ."

III. THE DECLINE OF MIDWIFERY AND THE RISE OF
MEDICINE

This privileging of male medical knowledge and the resulting second
class status of midwifery knowledge in matters of women's reproductive
health is a story of the past three hundred years, a relatively recent
development in human history. Women have been "with woman"54

before, during, and after childbirth for thousands of years. For most of
human history childbirth has been exclusively a female preserve, a matter
for midwives. However, the roots of the current devaluing of midwifery
are firmly rooted in that so-called golden age. Until the rise to dominance
of the medical model, in Western society at least, from the earliest recorded
times, the site of male control over reproduction has been the control of
midwifery-first by the church and later by science and the state.55 That
story is considered in this paper both because it illuminates the present, and
because its telling and its historiography have helped to shape the contem-
porary debate into one over who offers the best in scientific skill and
expertise in reproductive health matters.56

The Church was the institutional organ that controlled midwives

52 Rothman, supra note 15, at 122; see also Helen Roberts, The Patient Patients:
Women and Their Doctors (1985) (illustrating how the control of knowledge wields
power over women, particularly when women are patients).

" Philosopher-historian Michel Foucault has identified this dichotomy most clearly.
"There is, therefore, a spontaneous and deeply rooted convergence between the
requirements of political ideology and those of medical technology .... which turn
knowledge into social privilege." Michel Foucault, The Birth of the Clinic: An
Archaeology of Medical Perception 38 (1976).

" The old Anglo-Saxon term "midwife" simply means "with woman." Kitzinger,
supra note 4, at 1.

" See supra notes 6, 18.
56 See infra notes 86-89 and accompanying text. This celebration of science has

been recognized and critiqued fairly widely as masculinist, a male denial of alternative
(e.g. women's) ways of seeing and being. See Brian Easlea, Science and Sexual
Oppression: Patriarchy's Confrontation with Women and Nature (1981); Carolyn
Merchant, The Death of Nature: Women, Ecology & the Scientific Revolution (1980).

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throughout the medieval period, when the reproductive power of women
was associated with their supposedly dangerously sexual, sinful natures, and
men owned their women's capacity to produce children.57 Although
respected and influential figures, midwives were also seen as potential
witches.5" Childbirth was frightening and dangerous,59 and very much
women's business. Over time both the rationale and the mode of control
changed. By the beginning of the twentieth century, the state and the
medical profession controlled midwives. Women were no longer seen as
rampantly sexual, but instead were portrayed as having no sexual appe-
tites.' Rape was no longer theft of reproductive capacity, but rather a
crime of morality, and reproduction was a matter of state interest, with
women the conduit of new generations, whether of workers or of lead-
ers.6' Women and midwives were not only incapable of reversing this
trend, but indeed contributed to the new faith in science. They felt that as

5' Chamberlain, supra note 19, at 31-66. Moreover, rape was seen as theft.
Constance Backhouse, Nineteenth Century Canadian Rape Law 1800-92, in Two Essays
in the History of Canadian Law 200, 201-04 (David H. Flaherty ed., 1983); Lorenne
M.G. Clarke & Debra J. Lewis, Rape: The Price of Coercive Sexuality 110-24
(1977).

" For a strong argument for the midwife-as-witch thesis, see Barbara Ehrenreich
& Dierdre English, Witches, Midwives & Nurses: A History of Women Healers
(1973). According to The Malleus Maleficarum (The Hammer of the Witches), the
handbook for medieval inquisitors, midwife witches are the greatest threat to the
Catholic Church. The Malleus Maleficarum of Heinrich Kramer and James Specher
66 (Rev. Montague Summers trans., 1971). Isabel McAslan details the deep misogyny
of that document and the bizarre and horrible "tests" for locating witches that were in
use. Citing primarily to Mary Daly and Adrienne Rich she also documents the brutal
obstetrics practiced in 18th and 19th century Britain and North America, including the
removal of ovaries and clitorodectomies performed to "cure" "hysterical" or
"unnatural" women. Isabel McAslan, Pornography or Misogyny? Fear and the Absurd,
in The Anatomy of Gender: Women's Struggle for the Body 37 (Dawn H. Currie &
Valerie Raoul eds., 1992). Although the ongoing efforts to contain women healers is
undisputed, the midwife-as-witch thesis has been criticized by some as ahistoric. See,
e.g., Margaret Connor Versluyen, Old Wives' Tales? Women Healers in British
History, in Rewriting Nursing History 175, 191-93 (Celia Davis ed., 1980). Within
one hundred years of the first Church-approved study of medicine, women were
specifically forbidden to study medicine or to enter the many new universities.
Midwives and herbal women continued their work, of course, but were increasingly
regarded as being potential handmaidens of the devil. Successful medical practices that
were not church approved could only be successful through the devil's interventions.
Women healers, who were not permitted to receive the Church's sanction for their
practices, and who, as women, were morally weaker and more subject to his influences,
thus had to be closely controlled.

" Antonia Fraser, The Weaker Vessel 445-63 (1984) (describing women's lot in
17th century England); Edward Shorter, A History of Women's Bodies 35-97 (1982).

60 Ruzek, supra note 7, at 69-70; Backhouse, supra note 57, at 229-30.
61 Jane Lewis, The Politics of Motherhood 78 (1980).

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The Midwife's Tale

women of all classes turned to medicine for pain relief and greater safety
in childbirth, promotion and power for midwives would increase.
Midwives, who were primarily middle-class, linked their rise with that of
the male/medical structure. 62

The turning point, if any, for midwives was the late eighteenth and
early nineteenth centuries, when the trend away from the female, the
natural, and the irrational gained its ascendancy.63 Midwives were closely
associated with the care of poor and working-class women, and through that
association were successfully portrayed as providers of second-class care.
At the same time, the medical profession, as it was emerging, associated
itself with the interest of the ruling classes to ensure a viable workforce and
a stable economy. Those policies served (and reflected) their own interests
well.' The process was gradual and multi-layered. For example, as the
subject "bad mother" was introduced into social policy discourse, almost
inevitably concerning poor or working-class women, 61 midwives were

62 This is amply demonstrated in the histories that stress intra-professional rivalry
between midwives and physicians. See Donnison, supra note 19, at 177-89.

63 Historian Mary Chamberlain recognizes that the process of the diminution of the
midwife voice was a power struggle, and identifies the economic and class dimension
historically with the development of capitalism. "A hierarchy of knowledge became
established which paralleled the social hierarchies. Certain forms of knowledge were
identified with class and gender. Medical science became male, bourgeois science."
Chamberlain, supra note 19, at 146-47.

' For a treatment of this, see Juanne Nancarrow Clarke, Health, Illness, and
Medicine in Canada 277-79 (1990). For an analysis of the infusion of scientific
justifications into state police policy and legitimation, see Roger Smith, Trial by
Medicine: Insanity & Responsibility in Victorian Trials (1981). In the contemporary
context, see Dorothy E. Chunn & Robert J. Menzies, Gender, Madness and Crime:
The Reproduction of Patriarchal and Class Relations in a Psychiatric Court Clinic, 1
J. Hum. Just. 33, 37 (1990). The alliance is every bit as marked in the control of
reproduction. See, e.g., Shelley Gavigan, Women and Abortion in Canada: What's
Law Got to Do with It?, in Feminism and Political Economy: Women's Work,
Women's Struggles 263 (Heather Jon Maroney & Meg Luxton eds., 1986).

65 Carol Smart uses the term in her explanation of law as a "gendering strategy"
and points to the Infanticide Act of 1623 as marking the beginning of this strategy.
Smart, supra note 12, at 37-41. Smart also points to the use of the death penalty for
mothers who kill their bastard children. (The same statute imposed penalties and
restrictions on the midwives who assisted these women.) Smart does not touch on the
equally significant role of instruments of (what she and Foucault would call) discipline,
such as decisions of the Poor Law Commissioners. For example, an 1834 decision of
the Poor Law Commissioners urged that any penalties and charges levied on the fathers
of illegitimate children be repealed so that bastard children would remain "what
Providence appears to have ordained that it should be, a burthen on its mother, and,
where she cannot maintain it, on her parents. The shame of the offence will not be
destroyed by its being the means of income and marriage." Brenda M. Hoggett &
David S. Pearl, The Family, Law and Society: Cases and Materials 401 (2d ed. 1987).
The Poor Law Commissioners did not reverse their position until ten years later when

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Columbia Journal of Gender and Law

associated with her. Physicians, on the other hand, gained ascendancy as
"modern," "expert," and "better," and encroached more and more on the
obstetrical care of respectable women of all classes, and added the term
"midwifery" to the definition of their practice.6

During this period, medical doctrine of all sorts was augmented for the
first time with empirical knowledge obtained in the pauper infirmaries and,
most effectively, the lying-in wards of the great London charity hospitals.
Rarely has the reality of stark need more conveniently coincided with class
interests than in the raw material offered to inquiring and humane
physicians in the way of growing hordes of rural poor pouring into the
cities, cut off from traditional supports and vulnerable to death and
starvation on the streets .67 Pregnant working-class women, separated from
traditional supports, were driven into the hospitals, and physicians, for the
first time, developed practices and theories about pregnancy and birth from
an experiential foundation. They were able to test their knowledge with
examination and care of real patients, and their understanding grew.

The application of the new science in charity hospitals expanded
medical knowledge, but also increased the authority of the medical
practitioners, giving them access to additional knowledge by providing
empirical experience. This new science shifted from reliance on the
patients' subjective experience of problems (which remains important to
midwifery) to knowledge acquired through a physical examination,
therefore permitting the physician to tell the patient what she was feel-
ing. 6

1 Moreover, the policies of the lying-in wards ensured that the
physicians would "win the battle" against death in childbirth by denying
care to the so-called immoral women who were in poor health and could
not be readily "cured" of their pregnancy.69

they recommended that women be given the right to sue the fathers of their illegitimate
children in civil court. Id. at 402.

' In many jurisdictions, the practice of medicine continues to be expressed as
"medicine and midwifery," testament to the enduring quality of the role and the need
that doctors felt to use legislated definitions to assist in removing midwives from the
practice of midwifery. In Canada, in provinces using this definition, prosecutions for
practicing medicine without a license have been periodically brought against midwives
for the past one hundred years. See infra notes 78-84 and 130 and accompanying text.

67 Chamberlain, supra note 19, at 84-93.
Foucault, supra note 53, at 39-42. Edward Shorter, who advances a misogynist

analysis in the guise of sympathy and a call for better doctoring, places the change in
medical authority as being consolidated in the last 40 years. Shorter, supra note 33,
at 62-67, 109, 128; see also Judith Walzer Leavitt, "Science" Enters the Birthing
Room: Obstetrics in America Since the Eighteenth Century, 70 J. of Am. Hist. 281,
281-304 (1983).

69 Margaret Connor Versluysen, Midwives, Medical Men and "Poor Women
Labouring of Child": Lying-in Hospitals in Eighteenth Century London, in Women,

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Many factors combined to diminish midwifery and to transfer control
over reproduction to masculine science. At the same time that the emerging
medical profession engaged in a struggle for professional recognition,7'
economic and social forces produced an unprecedented state interest in
health, reproduction, and social engineering in which medical science
served as the expert voice. Perhaps the most significant of these was the
prevailing nineteenth century belief that poverty was a condition of moral
laxity and was susceptible to a scientific remedy, a "cure" as it were.7'
That perception paved the way for the creation of hierarchical health and
social services bureaucracies designed with that goal in mind.' Medical
authority over those exhibiting this moral failing was unquestioned, as it
was soon to be unquestioned in regard to female fertility and reproduction
more generally.73

In this climate of thought, the nineteenth century midwife was
portrayed as a drunken incompetent slattern by everyone from Charles
Dickens to contemporary medical historians.74 This picture was supported
by the doubtful status of all matters obstetrical. Also, midwives were
associated with immoral (poor) women. For example, the diet for pauper
pregnant women in the poor house infirmaries was called deterrent gruel (so
they wouldn't want to come back); pauper women's attendants in the wards
were women of very low status, often paupers themselves.76 Whether
justified or not, 7 legislators accepted the picture of ignorance, incompe-

Health & Reproduction 18, 18-19, 22 (Helen Roberts ed., 1981).
" See Johnson, supra note 15, at 45 (defining professionalization as the acquisition

of power); William Ray Arney, Power and the Profession of Obstetrics 39-49 (1982);
see also supra note 15 and accompanying text.

1 See supra note 59, 69.
72 Ruth G. Hodgkinson, The Origins of the National Health Service (1967). This

massive work provides a collection of the documents, reports, and papers that trace not
only the origins of the National Health Service, but also, unwittingly, the "birth" of
doctors as the experts of the welfare state. That process in Canada has been illustrated
and analyzed by Juanne Nancarrow Clarke. See Clarke, supra note 64, at 179-91.

3 See supra notes 34, 41 and accompanying text.
7 This image is a common one, almost an icon, particularly among medical

historians. See Towler & Bramall, supra note 19; Nancy Schrom Dye, History of
Childbirth in America, 6 Signs 97, 102 (1980).

11 Throughout this period, midwives continued to perform their traditional extended
function with the women left to their care, to dispense birth control information, and
to perform abortions. Doctors initially avoided the abortion issue since it did not
improve their status. Kristin Luker, Abortion & The Politics of Motherhood 41-45
(1985). Today in many parts of the world, abortion services are associated with
midwives. See generally Greer, supra note 7.

76 Hodgkinson, supra note 72; Chamberlain, supra note 19, at 106-11 (mentioning
deterrent gruel at 109).

'7 Significant numbers of non-pauper women in the 19th century continued to rely

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tence, and anarchy used by medical men against licensing for midwives.
In the United States and Canada, midwifery almost disappeared; in Great
Britain it was severely restricted.78

The forces that operated in Canada and the United States to suppress
midwifery and to advance doctors as the sole appropriate birth attendant
were similar to those that were effective in the United Kingdom. The rise
of the medical profession, the scientific revolution, and a growing state
interest in fertility and perinatal health were significant on both sides of the
Atlantic, and both class and gender bias figure in the campaign waged by
doctors against midwives well into the twentieth century. The language
used by doctors writing for women's magazines as late as the 1930s openly
allies male medical science with altruistic, objective truth, and implicitly
demeans alternative visions. Dr. John McCullough, for example,
describing himself as writing "frankly" about midwifery in the popular
Canadian women's magazine Chatelaine in 1931, posits the high maternal
death rate as the important issue, without ever touching on the actual
competition for business that was still a reality.79 The maternal deathrate
in Canada, 6 per 1,000 living births, was lower than that of the United
States but was much higher than Sweden's where midwifery is universal
(2.94 in 1926, 2.78 in 1927, 3.30 in 1928, and 3.40 in 1929 per 1000
living births).'

on the local midwife rather than risk the local hospital. Moreover, mortality rates were
considerably lower for these women than for those who had their babies in hospitals,
lying-in wards, and Poor Law infirmaries largely because of much reduced risk of
infection at home without instruments. Arguably the care was much better and safer,
less interventionist, more patient, and much less stressful. See supra note 75.

78 In Britain, the 1902 Midwives Act reflected an acceptance of all of these
stereotypes about midwives which continue to the present. The British legislation
focused on the pauper hospital attendants, and regulated everything from clothing to
living habits to midwifery skills. Donnison, supra note 19, at 177-80; see also infra
notes 79-86 and accompanying text.

79 According to Dr. McCullough:

In the entire field of public health and medical practice there is no more
engrossing subject nor one of higher importance to the national character of our
people than the preservation of the mother .... but of all our resources the
sons and daughters of the great pioneer mothers of Canada take the first rank.
Their character, their health, their very existence depend on the mother.

John W.S. McCullough, Should Canada Have Midwives?, The Chatelaine 13 (Oct.
1931).

80 Id. at 13. Physicians' efforts to eradicate midwifery and other homeopathic and
naturopathic healers took a predictable path and ostensibly had been resolved by the
middle of the 19th century with the passing of a new Medical Act in 1865. This Act
prohibited anyone but a practitioner licensed under the Act from legally recovering any
charges for any medical advice, medicine or operation provided, or from holding
themselves out as licensed practitioners. While it did not directly prohibit midwives

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The Midwife's Tale

The primary reason advanced to explain the low mortality rate of
countries such as Sweden and the Netherlands which have midwifery as part
of the health service is racist jingoism, blithely offered up as part of the
physician's role as moral decision maker."' The offered solution, of
course, is not the substitution of midwife for doctor, but pre- and postnatal
care and education of the mother, all under male medical supervision. This
answer suffices for almost forty years, not only because it is medicine's
voice, but because it serves other interests equally well. Women are
portrayed as incompetent childbearers and birth attendants, in contrast with
male medical expertise.' The alliance of medicine's expert voice, with
state interests in the promotion of familial ideology 3 is enduring and
longstanding .'

The history of medicine's rise to dominance over knowledge about
women's reproductive power has sometimes been expressed in linear
economic terms. That is, doctors worked to discredit midwives because
they needed the fees from obstetrical services, and in. providing obstetrical
services communities could not afford the "luxury" of midwives.' While

from assisting at birth, it made it illegal for them to charge for their services.
s Dr. McCullough opines that Canada "must deal with almost all races of the

world striving to make a living and to reproduce in an alien climate and under unusual
conditions." Id. at 13. He particularizes his racism with examples, including:

Intermarriage between different races is a factor in difficult labor .... Foreign
peoples vary in their attitude toward the physician. The midwife could not be
expected to have any better success with these types of peoples than the doctor.
Continental people at home are much better disciplined than our mixed
population. They obey the laws and rules of their own country and are inclined
to abuse the wider privileges of this free country.

Id. at 13.
2 McCullough, supra note 79, at 53. For a critical analysis of the class and

gender bias that served both professional and political interests, see Clarke, supra note
64, at 224-48.

83 Clarke, supra note 64, at 205-06. The law is frequently complicit in this
process and the engagement of psychiatry in the criminal justice milieu is perhaps its
most overt expression. See Chunn & Menzies, supra note 64.

" On a micro level, the efforts of middle-class feminist reformers ultimately
contributed to the same result. For example, the role for nurses and midwives in their
relationship with hospital hierarchy was put in place more than 100 years ago in the
Nightingale Code: "If you see anything which you believe to be prejudicial to the well-
being of your patients, it is your duty to report it forthwith to your immediate superior
and then meddle no further therein." Dr. Herbert Barrie, Ethical Decisions, 18
Midwife Health Visitor & Community Nurse 480, 482 (1982).

85 The economic issue was expressed overtly in Canada in the days before
midwives were driven completely underground. It continues today in various forms.
See Jutta Mason, Midwifery in Canada, in The Midwife Challenge, supra note 4, at 98,
108-29.

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economic interests were at work, medicine's dominion was (and is) waged
in ideological terms. The safety of infants and the frailty and incompetence
of women are posed as challenges to science. Ignorant, dirty, lower-class
women midwives are compared unfavorably to educated, upper/middle-class
male doctors. As women's fear and mistrust of their own bodies increase,
so does their need for and reliance on male physicians.

The story has even more frequently been told as one of a straightfor-
ward competition between professions, sometimes a competition between
genders, using liberal concepts of progress and change. The description
becomes the analysis and represents a historiography that collapses class and
gender issues and cedes the terrain to the experts, as the story unfolds of
class-neutral male physicians coming to a position of preeminence over
equally class-neutral (and simply less qualified) women .midwives. I That
description must be placed in a wider context, one that rejects the historical
characterization of the midwife and her role within the community as
simply being analogous to that of professional physicians, only female.'
There is more operating here than the achievement of one set of interests
(medicine) at the expense of another (midwifery), or even the triumph of
a scientific worldview over a naturalistic one. The constructs and
paradigms of science are gendered, and in that sense the reason that the
men of medical science control reproduction today is as much a product of
the patriarchal imperative described by Mary O'Brien"8 as it is of a
mythically neutral and objective science, and as much a matter of class as
a matter of gender. Indeed, it is important to see these historical changes
as results, rather than as causes. The failure to do so romanticizes
midwifery, 9 essentializes women with no recognition of particularity of
class and race,' and distorts tactics and strategy. Consideration of the

86 See Kitzinger, supra note 4 (noting that studies reveal the decline of midwifery
as attributable to the emergence of a male-dominated medical profession and while
critical of much of that work, she identifies the challenge as primarily gender based);
see also Lesley Biggs, The Case of the Missing Midwives: A History of Midwifery in
Ontario from 1795-1900, 75 Ontario Hist. 21 (1973). Biggs concludes that the
displacement of the midwife can be better understood in terms of this competition than
as an ideological struggle or as scientific advancement. Id. at 33.

87 Barbara Katz Rothman identifies the authority of that version. "[W]hen we look
backward, midwifery seems to us like a branch of medicine, and the midwife an
untrained forerunner of the obstetrician." Rothman, supra note 27, at 51.

88 See supra notes 47-50 and accompanying text.
89 In Canada, although this argument is not uniquely Canadian, the trend is to

glamorize the history of midwifery and to cast midwives into the sisterly role of"neighbor women" acting in and through an unspoken but shared "birth culture." For
a historical examination of the "neighbor woman" midwife, see Cecilia Benoit,
Traditional Midwifery Practice: Limits of Occupational Autonomy, 26 Can. Rev. Soc.
& Anthropology 633 (1989); see also Burtch, supra note 9.

9 This essentialism has become an important challenge to what has been identified

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The Midwife's Tale

lived lives of British midwives illustrates that particularity, and sharpens the
questions around legal recognition in Canada.

IV. THE CONTEMPORARY DEBATE: UNITED KINGDOM,
UNITED STATES, AND CANADA

United Kingdom: Regulated Integrated Midwifery.

Although midwives in the United Kingdom achieved the legal status
and recognition that Canadian and (most) American midwives did not, the
majority of British midwives today are employed in hospitals where policies
and procedures are essentially determined by the consultant obstetrician,
where their midwifery skills are eroded by substantial time spent in nursing
activities, and by the tendency of doctors, particularly junior ones, to either
repeat or themselves perform the type of examination and procedure that
should be part of a midwife's usual role.9 The hierarchical medical
model of nursing supervision has been adopted for midwives' and their
work defined, restrictively, as one of the caring professions."

Although this subservient role has theoretically been changed, and
midwives in Britain are recognized as independent professionals,'" the
reality is that midwives struggle under the same double burden that most

as white, middle-class feminism. See bell hooks, Talking Back: Thinking Feminist,
Thinking Black (1989); Marlee Kline, Race, Racism, and Feminist Legal Theory, 12
Harv. Women's L.J. 115 (1989).

"' Sarah Robinson, Career Intentions of Newly Qualified Midwives, 2 Midwifery
25 (1986); Sarah Robinson, Normal Maternity Care: Whose Responsibility?, 92 Brit.
J. Obstetrics & Gynecology 1, 1-3 (1985) (discussing the increasing involvement of
medical staff in management of normal maternity care leading to the restriction of the
midwife's role).

"I For a description of the impact of the nursing supervision model (itself an
offshoot of medical hierarchy), see E.A. Bent, The Growth and Development of
Midwifery, in Nursing, Midwifery and Health Visiting Since 1900 180, 180-95 (Peter
Allan & Moya Jolley eds., 1982).

9 "The aim is to assist, and/or enable people as patients, clients or relatives to
meet their physical, psychological and social needs. Thus, caring for people is their
business; they are educated and trained in ways of undertaking this function." Allan
& Jolley, supra note 92, at 17.

' She is described as a "practitioner who has the capacity to challenge, the honesty
to ask why, the empathy to care, the skill to perform competently and the determination
not to be put down," all as a result of the new legislation. Failure to live up to this
standard means that she is "rejecting honesty, tolerating the intolerable, contributing to
the abuse of colleagues, accelerating a deterioration of standards and reneging on
personal professional accountability." Reginald H. Pyne, The UKCC Code of Conduct,
82 Nursing Times 510, 511 (1986).

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working women face, and have little autonomy or power over their work.
The British midwife is the supposed expert in normal birth, committed to
the ancient wisdom of Hippocrates in regard to routine procedures, prinam
non nocere (first do no harm),11 yet she is expected to follow procedures
established by hospital obstetric consultants about anything from the routine
artificial rupture of membranes,' routine use of syntometrine in the
third stage of labor,9" and when to do vaginal examinations during the
course of labor," to how to take a blood sample." ° She is meant to be
fully accountable to patients and to her professional body for her own
practice, but is not permitted to ever be wrong in the exercise of judgment,
a judgment which must arise in the context of the procedures which govern
in the hospital where she works. 01 For example, midwives preside as
maternity nurses over increasingly mechanized births, becoming so used to
depressed fetal heart rates in women on their backs connected to intrave-
nous (IV) units tied to Electronic Fetal Heart monitors, paralyzed from the

11 Association of Radical Midwives, Newsletter, Spring 1987, at 15, cited in
Martin, supra note 6, at 32 n.76.

" The uterine membrane is ruptured to produce a "breaking of the waters" or
release of amniotic fluid when it has not occurred naturally during labor to accelerate
a delayed or slow labor, but when done routinely, that is, without a diagnosed reason,
the increased risk of infection, for example, outweighs the value of the procedure. A
midwife was sanctioned, however, for not following hospital rules requiring the
procedure. Proceedings Against White, Testimony before the UKCC Professional
Conduct Committee (May 21, 1987) (author's personal notes, on file with author), cited
in Martin, supra note 6, at 32 n.77.

9 Syntometrine is a drug which increases the strength and duration of contractions
of the uterus. As with most drugs, side effects are possible, and its routine use is
difficult to justify. Association of Radical Midwives, supra note 95, cited in Martin,
supra note 6, at 32 n.78.

98 Labor is generally understood as having three stages: the first involves the onset
of contractions; the second stage is the active pushing stage leading to the birth; and the
third stage describes the expulsion of the placenta after the birth of the baby.

" Proceeding Against Lee, Transcript of the UKCC Professional Conduct
Committee (Nov. 15, 1984), cited in Martin, supra note 6, at 33 n.79.

"0 Proceedings Against McCormack, Transcript of the UKCC Professional Conduct
Committee (July 25, 1985), cited in Martin, supra note 6, at 33 n.80.

101 Indeed, as recently as 1983, the Royal College of Obstetricians and Gynaecolo-
gists declared that they "cannot accept responsibility that within either the Specialist
Maternity Units or the GP units it is the midwife's responsibility for all normal
deliveries. The ultimate responsibility must rest with the consultant within his unit or
with the GP under whose care the patient is booked." Quoted in Wendy Savage, A
Savage Enquiry: Who Controls Childbirth? 133 (1986) (describing the ordeal of a
woman-centered obstetrician, Wendy Savage, working with poor and immigrant women,
against whom, ironically, the above proposition was used, and providing a stark
illustration of the class and gender issues that are the underpinnings of the medical "best
interests" rationale); see also supra note 6.

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The Midwife's Tale

waist down with epidurals, that they may miss fetal distress. In some
health areas if they complain about procedures or refuse to intervene
routinely they face employment disciplinary proceedings for disobeying a
doctor, or refusing to follow a rule when it is not in the patient's interest;
however, midwives may also face discipline for not disobeying.,'

The class position of British midwives cannot be ignored. Over ninety
percent of midwives practicing in the United Kingdom do so as relatively
low-paid employees with the National Health Service0 3 where the first
line of control is at the employee level. Midwives in this regime are first
working women. Within hospital hierarchy, they are policy implementors,
not policy makers, initially reporting to the first-level supervisor, the
Nursing Officer, who in turn reports to a Supervisor of Midwives for a
health area."°  An employment model operates with investigations of
conduct of a purely employee-like character (i.e., tardiness) merging with
complaints about, and investigations into, the employee's performance as
a midwife. The dual nature of the midwife manager's role as professional
colleague and advisor as well as employment manager has the potential for
abuse, misuse, and misunderstanding, particularly in view of the manager's
power to temporarily suspend a midwife from employment and to set in
motion the power of the Local Health Authority to suspend her right to
practice pending a final determination by the statutory body."°5 The
midwife can appeal the local decision through the regional and district
levels of the National Health Service, or to an Industrial Tribunal,"° but
until the professional disciplinary process has been completed, it is quite
possible that she could remain under statutory suspension for a year or
more and then finally be exonerated. Professional discipline and employee
discipline are obviously not intended to be the same thing, but the only
guarantee that they are not rests on the fairness and competence of
management and/or the energy and willingness of the midwife to pursue
legal remedies. The link between professional conduct and purely manage-
ment decisions to discipline remains somewhat unclear. The result is that

"0 All of these "standard" hospital procedures, from the use of the lithotomy
position for delivery (mother on back, feet in stirrups), to the routine use of the IV and
Electronic Fetal Monitoring, have been associated with poor outcomes for mother and
baby. See supra notes 27, 38, 39 and accompanying text. For an illustration of the
dilemma for the midwife, see Proceeding Against Lee, supra note 99.

103 Eng. Nat'l Board for Nurses, Midwives & Health Visitors, Ann. Rep. (1985),
cited in Martin, supra note 6, at 34 n.85.

'0 Flint, supra note 29, at 193-96.
105 Flint, supra note 29, at 197-99.
'0 Minutes of Professional Conduct Committee, English Nat'l Board, (Mar.-Nov.,

1985), cited in Martin, supra note 6, at 35 n.90.

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Columbia Journal of Gender and Law

the "difficult" employee, who may be an excellent midwife, was and is
more vulnerable to discipline at either level than the mediocre midwife who
merely "toes the line."" ° The stage for this impossible position was set
two hundred years ago by the mechanisms enshrined in the legislation that
created the profession."8 The position of midwives in the United King-
dom today sharply illustrates the dilemma facing North American midwives
and their supporters.

Midwives in Canada and the United States: A Calling
Without a Voice

The bureaucratized, oppressed midwife working in a state-regulated
regime that expresses the will of the medical establishment is the specter
that haunts midwives in both Canada and the United States who are seeking
and considering the wisdom of state recognition. It is reality for midwives
in the American states that recognize nurse-midwives, whose position as
employees looms large in their lives. The experience in the states in which
"community midwifery" (referred to as "lay midwifery" in U.S. legislation,
in distinction from "nurse-midwifery"" °9) is legally recognized has been

107 Martin, supra note 6, at 35-36.
"0 The test of what constitutes professional misconduct for a midwife is extremely

strict, is defined as "conduct unworthy of a ... midwife" and is determined by the
members of the Professional Conduct Committee. Nurses, Midwives and Health
Visitors (Professional Conduct) Rules, S.I. § 1(2)(i) (1983). The composition of the
Committee has changed dramatically from 1902, when the members of the Central
Midwives Board established by the 1902 Act were not even required to be midwives
(although four were), to the 1979 legislation which for the first time ensured that a
majority of the members of the Midwifery Committee of the UK Central Council for
Nursing, Midwifery and Health Visiting were practicing midwives and that midwives
were dominant in deciding questions of midwifery misconduct. Nurses, Midwives and
Health Visitors Act, 1979, ch. 36, § 4(1) (Eng.). In 1915, conduct "unworthy" of a
midwife encompassed her personal life and morals as well as her competence, an
unlikely standard today. Stock v. Central Midwives Board [1915] 3 K.B. 756 (Eng.
C.A.) (at issue was the cohabitation of the midwife with a man not her husband).
However, a single inadvertent act, a sole error of judgment, or -a breach of hospital
procedure can and does constitute professional misconduct; it is a standard of
perfection. In contrast, the test for medical practitioners is a pattern of conduct
demonstrating incompetence to the extent that a "consultant could be personally
responsible for mistakes without his competence necessarily being called into question."
Savage, supra note 101, at 189.

109 Vicki Van Wagner, With Women: Community Midwifery in Ontario (1991)
(unpublished Master's Thesis, York University). Van Wagner prefers the more
accurately descriptive term "community midwife" and rejects the earlier "lay midwife"
to describe midwives who fit the WHO definition, and who almost universally attend
women at home births as well as acting as "labour coaches" at hospital births (to gain
admission). For an autobiographical description of the enormous difficulties facing

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The Midwife's Tale

equally bleak. For many of these midwives, their community practices,
usually comprised of a mixture of very poor women with no other
maternity-care options and privileged, well-educated women challenging
traditional medical practices around birth, are dependent on physician
approval. This dependence has resulted in closely circumscribed practices,
and abusive and insulting restrictions on everything from birth registration
to ongoing "fitness to practice" testing." In fact, state regulation in the
United States has produced conditions not unlike the situation in countries
which have a longstanding recognition of midwifery."'

By claiming for itself the moral and expert high ground, medicine has
dominated the public debate and has made itself the arbiter of the public
interest in an almost impermeable hegemony."' However, medical hege-
mony has not gone unchallenged by women reacting to the medicalization
of birth in any of the three countries."' In the resurgence of interest in
home birth in the 1970s for example, some women decided that changing
doctors and hospitals was not worth the effort, or was not possible and went
"underground" with a midwife in attendance to have their babies." 4 That

midwives in the United States under both systems, see Penny Armstrong & Sheryl
Feldman, A Midwife's Story (1986).

110 For a survey of the restrictions imposed on midwives in the United States, see
Butter & Kay, supra note 8; see also Robinson, supra note 16; Walker, supra note 16.

.. For an analysis of the use of the professional conduct regime in the United
Kingdom, see Martin, supra note 6.

1' For example, Maureen Baker, writing for the Library of Parliament, notwith-
standing her clear sympathy to midwifery for Canada, simply states, "As long as
physicians retain their current dominant role in the health care system, any changes to
this system will come on physicians' terms." Maureen Baker, Midwifery: A New
Status 25 (1989) (available at the Library of Parliament, Ottowa and on file with the
Columbia Journal of Gender and Law). Equally explicit in asserting physician
acceptance as the sine qua non of recognition is Kristin E. McIntosh, Regulation of
Midwives as Home Birth Attendants, 30 B.C. L. Rev. 477 (1989).

"3 The women's health movement has had an impact in all three countries. In
Britain the "Association of Radical Midwives" was formed to challenge medical
hegemony and to support midwives struggling to regain their autonomy. All over the
United States, in part arising out of the critical need of poor women for any maternity
care at all, particularly in New York City, Louisiana, and parts of Washington,
California, and Massachusetts, community midwives established themselves and began
the battle for legal recognition. These forces were much slower to take root in Canada;
there was no obvious lack of maternity care and no core of working midwives to
radicalize. See Mason, supra note 85.

14 Despite attempts to segregate place of birth from birth attendant, the two are
closely connected in jurisdictions where midwives attempt to practice independently.
See Sullivan & Weitz, supra note 27; McIntosh, supra note 112. The collapsing
together of midwifery and home birth continues in Ontario even in the face of pending
legalization. For example, a recent article purporting to be about midwifery is in fact
an endorsement of home birth. See Wendy Powell & Douglas Powell, Midwifery: The

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Columbia Journal of Gender and Law

alliance of women (seen in the women's health movement, for example)
supported midwives who were striving to reclaim the midwifery ethic and
to put considerable pressure on state and medical establishments." 5  At
the same time, by casting the issue as one of opposition to an establishment,
and as a matter of individual choice, this movement has also provided the
basis of resistance to the question of professionalization for midwives." 6

State Recognition: The Canadian Compromise

In Canada, the medical establishment recognized that place of birth had
become a direct challenge to its dominance and proprietorship.' ' To the
medical establishment, place of birth could no longer be a matter of
parental choice, but rather came to be defined as a medically significant
question of safety and responsibility. Once again the medical association
allied itself with the "public interest" and with state power. In Ontario, for
example, they made exceptionally effective use of the coroner's inquest, an

Evidence in Favour Grows, Toronto Star, Sept. 3, 1992, at A21. The Powells cite
Cesarean section rates, the recent trial challenging the routine use of episiotomies (a
surgical incision in the vagina to enlarge the birth passage), and physician dominance
to support midwife attended home birth. Criticism of midwifery also focuses on place
of birth. David Shoalts, Ontario First Province to Recognize Midwifery as Profession,
Globe & Mail, Nov. 22, 1991, at A5. In the article, covering the third reading of the
new legislation on November 20, 1991, Andre Lalonde for the Society of Obstetricians
and Gynecologists of Canada focused his criticism on independence and place of birth.
"'Every province in the country has had deaths from home births. We're not against
midwives, but we think there has to be a team approach. There's got to be someone
in charge of these people .... We're all for midwives, provided they are integrated
with a medical team. "' (emphasis added); see also Alanna Mitchell, Never Mind the
Lousy Experience-It's Life that Counts, Globe & Mail, May 2, 1991, at Feedback
(expressing strong support for reliance on medical technology in birth, and suggesting
that home birth, midwifery, and natural childbirth (all part of the same phenomenon
according to Mitchell) reflect a selfish desire for a "spiritually heightened" experience).

"I Sullivan & Weitz, supra note 27 (providing a general review of the literature on
the debate and safety statistics around home birth, and the movement of educated and
middle-class women to midwifery services). Vicki Van Wagner has also studied this
phenomenon. See Vicki Van Wagner, Women Organizing for Midwifery in Ontario,
17 Resources for Feminist Res. 115 (1988). For a discussion bearing witness to the
strength of the movement in the United Kingdom, see Flint, supra note 6, at 22-39;
Jennings, supra note 6, at 13.

116 The concern around professionalization is identified in Butter & Kay, supra note
8.

"7 The debate has been public and vocal. For the view of the Quebec medical
establishment, see Globe & Mail, Apr. 29, 1992, at A7. The article quotes a Manitoba
Provincial Court Judge as finding in the inquest report that Darlene Birch and Marla
Gross (both midwives) "'lacked the knowledge, expertise and skill to recognize and deal
with the complications which arose"' during the birth of twins at the home of Lorna
Cameron. One twin was stillborn. The reply has been equally strong.

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The Midwife's Tale

instrument almost exclusively within their control." 8 By focusing the
legal and public debate around instances of infant death, medicine attempted
to maintain preeminence in matters of safety by locating midwife-attended
births in the sphere of the exceptional and hazardous. The particular focus
was on home births, widely portrayed by the medical community as unsafe,
in spite of the evidence to the contrary." 9

In Ontario, the largest province in the country, now on the verge of
implementing ground-breaking midwifery legislation, the blatant, even
brutal, use of the legal institution of an inquest in 1985"2° might have
succeeded in its attempt to prevent the recognition of midwifery in Ontario
but for widespread support from women, both individually and in groups,
and the determination of the midwives and the parents involved. The
prosecution's right to stop the inquest at any time and to bring criminal
charges,' coupled with blind reliance on scientific expertise which is
often inherently illogical," was intended to discredit independent mid-
wifery in general and home birth in particular. Instead of criminal charges
against the midwives, however, or recommendations for a closely controlled
practice, the verdict was strongly in favor of an independent midwifery
profession and acknowledged that parents had the right to choose both
attendant and place of birth. The inquest led to the establishment of a task
force to inquire into the implementation of independent midwifery in

118 Coroners Act, R.S.O. Ontario, 1990.
"9 See supra note 114; Sullivan & Weitz, supra note 27, at 112-32.
120 McLaughlin-Harris Inquest, supra note 35. The inquest seemed to have been

intended to tarnish independent midwifery and home birth. The organizing efforts of
the Association of Ontario Midwives, and its involvement in a sophisticated legal
strategy, which included expert witnesses from WHO and the United States, probably
contributed to the failure of the attempt.

21 Coroner's Act, 1988, ch. 13, § 16(1)(a) (Can.). Although criminal charges were
threatened in the McLaughlin-Harris inquest, supra note 35, they have not been
successful in Canada in recent years. Criminal charges were brought in British
Columbia, in another midwife-assisted home birth. The trial judge's conclusion was
that the relevant standard of care for determining negligence was that of a "medical
practitioner." R. v. Sullivan, 55 C.R.3d 48 (B.C. County Ct., 1986) (acquittal entered,
The Queen v. Sullivan, [1991] 1 S.C.R. 489 (Sup.Ct. Can.)). The issue before the
Supreme Court was the legal status of the fetus; the Crown argued that the midwives
could be guilty of causing bodily harm to the fetus in the process of its being born, thus
granting "personhood" to the unborn. The opposite conclusion was reached in Nova
Scotia in 1983, when criminal negligence charges were brought against midwives
attending a home birth. The midwives were discharged after the preliminary inquiry,
having established that they were competent midwives, and that their approach, although
not shared by much of the medical community, had been excellent midwifery. R. v.
Carpenter, unreported judgment (Prov.Ct., Crim. Div., Halifax, Nova Scotia, Nov. 25,
1983).

122 Supra notes 36-38 and accompanying text.

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Ontario, which released its ground-breaking report two years later. The
Report of the Task Force on the Implementation of Midwifery in Ontario,
released in September 1987, appears to represent a victory for the
supporters of independent midwifery and woman-centered childbirth.
Legislation has been passed implementing the Task Force's recommenda-
tions, and an interim Midwifery Advisory Council has been established to
assist in the development of a College of Midwives."2

In the face of the determination of medical opposition, the Ontario
legislation, An Act Respecting the Regulation of the Profession of
Midwifery ("The Midwifery Act"), I  represents an impressive attempt
to establish an autonomous sphere of practice for community midwives.
The scope of authorized practice is that recognized by WHO, with specific
authorization for performing and repairing episiotomies and tears, admin-
istering drugs by injection or inhalation, conducting vaginal examinations
in the course of managing labor, and conducting spontaneous normal
vaginal deliveries."15 The College of Midwives, including its Executive
Committee, Complaints Committee, and Quality Assurance Committee,
does include non-midwives appointed by the government (in a manner
similar to other health professions) but midwives hold a substantial majority
on all governing committees. 2 The Midwifery Act represents one of the
strongest statements of legislative support for an autonomous profession of
midwifery anywhere in the world.

The result is in many ways a victory for women, but to determine how
significant a victory one must ask, once again, whether women and mid-
wives can harness the state's interest in fertility and health on their own
terms in the face of the dominant role the patriarchal medical hegemony
plays in setting the agenda. The experience in Britain and the United States
documents the enormous difficulty facing women and midwives who chal-
lenge the patriarchal imperative to control reproduction. On the other hand,
the cost of fighting legal battles is extraordinary, both in personal and in
economic terms, and ending the prosecutions has been recognized as one of

123 The bill, which would make Ontario the first province in Canada to formally
recognize midwives, was introduced on April 2, 1991 (Alberta and Quebec have only
pilot projects). Matt Maychak, Ontario Plans Licensing for Midwives, Toronto Star,
Apr. 3, 1991, at A11. The Michener Institute announced a midwifery preregistration
program with a call for applications for registration from practicing midwives with two
years of active practice of midwifery in Ontario. Globe & Mail, Dec. 16, 1991, at D1;
Shoalts, supra note 114 (covering the third reading of the legislation, Nov. 20, 1991).

124 The Midwifery Act received a first reading June 6, 1990, went to Committee,
and had a second reading in May, 1991. It has now passed with a third reading, supra
note 114.

125 The Midwifery Act, §3-4 (1990) (Ontario).
126 Id. §§ 6-14.

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The Midwife's Tale

the benefits of state regulation. 27 Insisting that midwives remain unregu-
lated and "underground" in order to preserve their "purity" 2

1 condemns
dedicated women to marginalized and exhausting lives and ensures that
midwifery services will remain available only to an elite group of women
who are "in the know" about alternative health services, or to women in
isolated communities that are unattractive to doctors, which sends a message
that they are receiving second-class care. 9 Absent legislation, there is
no doubt that the prosecutions would continue, particularly as midwifery
gains credibility with the public and with legislators, as the Ontario pattern
of the use of legal strategies to discredit midwifery is a constant across the
country. 130

Moreover, lessons about state regulation in the United States have
limited relevance in the Canadian context as health-care debates in Canada
have an additional dimension arising out of the medicare scheme, and
currently turn on questions of cost effectiveness, "skyrocketing health care
budgets," and the need to curb doctors' fees and demands.' It is not
surprising in this context that government has shown itself increasingly
willing to listen to midwives and their supporters, even in the face of
vigorous medical opposition to the introduction of an independent profes-
sion of midwifery. The argument that attracts government is that midwifery
care is less costly than medical care and every bit as safe, if not more
so.3 2  Canada's system of state-run medical insurance is both expensive

127 This benefit has certainly been recognized in the American context. Butter &
Kay, supra note 8, at 1168. In Canada, the excuse commonly offered for the calling
of an inquest is that midwives are unregulated and the Coroner's duty demands an
inquiry. Presumably, legal recognition and thus regulation would remove that weapon.
See Burtch, supra note 9.

"I See Mason, supra note 85, at 124-25.
29 Mary McIntosh, Feminism and Social Policy, 1 Critical Soc. Pol'y 32 (1981)

(discussing this issue from the perspective of women's struggles with the state and state-
sponsored services and concluding that "purity" is a result of inward-looking and
ultimately apolitical structures).

130 In the face of pending legislation, as recently as June 1991, inquests continued
to be called in Ontario, and are pending in Manitoba where a midwife attended home
births. Inquests have been held recently in Quebec, contemporaneously with proposed
legislation to study midwifery within the framework of eight pilot projects. Bill 4
received Royal Assent June 22, 1990 in the face of extraordinary physician opposition.
See Picard, supra note 45, at A10. Midwives were charged in Alberta in the first
prosecutions for practicing medicine without a license in many years, arousing both
public interest and sympathy. See Rod Mickleburgh, Case Renews Long-standing
Debate: Alberta Midwife Who Helped Deliver a Healthy Baby Is Charged with
Practising Medicine Without a License in First Such Case Recalled, Globe & Mail,
Nov. 13, 1990, at Al. The charges were stayed in Provincial Court on June 5, 1991,
on the basis that practicing midwifery is not the practice of medicine.

131 Baker, supra note 112, at 5.
132 Baker, supra note 112, at 6; see also Van Wagner, supra note 109 and studies

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Columbia Journal of Gender and Law

and extremely popular, and government has interests other than the medical
profession to consider. At the same time, although there is no doubt about
the preeminent position in terms of status and prestige that medicine holds
in the hierarchy of health-care providers in Canada (as in the United States
and Britain), Ontario midwives are establishing themselves in a climate
wherein working women are at least theoretically equal, in sharp contrast
to the class and gender bias that established midwifery regulation in the
United Kingdom. It is on these interests that midwives and their supporters
rely. The response of the dominant voices in the medical profession has
now been limited to reminding government of its need to win their support,
a move from total opposition to midwifery to a reluctant acceptance of a
possible addition to their world.'33

V. CONCLUSION

There remain a number of issues of substantial importance, all of
which could continue to impose a heavy burden on the members of the
Ontario Association of Midwives, the organization which has been central
to the struggle for recognition of midwifery in that province. Any one of
these issues could, in hindsight, represent the fatal compromise between
principle and possibility. For example, nothing in the proposed legislation
would oust the power of the coroner to call an inquest (which is available
against all other professions). Although the unregulated nature of
midwifery provided the public-interest justification for the earlier inquests,
it is by no means clear that the existence of regulation will end coroner
interest. In this context, it is important to remember that the legislation
authorizing "lay" midwifery in the American states, where it exists, was
also the product of extraordinary effort and represented compromises that
appeared appropriate or inevitable at the time in response to different

cited therein.
13 The medical profession has many allies. Louise Brown, medical columnist (and

supporter) for the Toronto Star, writing in Ontario in 1991, on the eve of statutory
recognition of independent midwifery, is still able to write about "labor coaches" as a
useful "addition" to obstetrics with only one passing mention of the "M" word; and
make a clear statement that these labor coaches do nothing "medical." She attributes the
rather startlingly impressive results of "labor coach" support in labor to "psychologi-
cal" factors. She reports on satisfaction and outcome in a University of Toronto
controlled study of 103 women, half with "labour coaches," half without. The results
might have given Dr. Hilliard pause in 1950; deliveries with no labor coach were twice
as likely to need an epidural or painkiller, and three times as likely to have an
episiotomy or suffer vaginal tearing. The results replicate a Houston study of 600
women; 8% with a labor coach required a Cesarean versus 18% without; 8% with a
labor coach required forceps versus 26% without; and the average length of labor was
7.4 hours with a labor coach versus 9.4 without. Brown, supra note 17.

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The Midwife's Tale

questions about relationships with the state." The Ontario Act does not
contain any of the obvious weaknesses of the American statutes, particularly
physician domination;'35 however, the struggle is by no means over.
Issues around funding, training, medical backup, hospital support and
access, and inter-professional conflict remain to be addressed. At each
stage of the development of the "new" profession, midwives will be faced
with absorbing and using what the medical model has to offer, reassuring
hostile or uninformed doctors and nurses, and supporting their clients in the
process, all while remaining true to their own tradition and norms. It is no
wonder that some would prefer to remain out of this treacherous main-
stream. 1

3 6

The prevailing argument, that licensure and professionalization
comprise the only route that will preserve midwifery and extend midwifery
services to all women, itself raises intriguing and important questions about
how this might be achieved in the face of the tremendous forces of
patriarchy that medicine, the law, and, in the final analysis, the state, have
arrayed against it.'37 However, it is the apparent enormity of the struggle
which contains the key to its solution. Midwifery in this context is a
feminist issue; not an add-on at the margins of the struggle for reproductive
autonomy, but a theory and a practice that can act as a catalyst for bringing
women together across lines of class, difference, and race. The lessons to
be learned from the midwife's tale can and should be applied to broader
questions.

The marginalization of the struggles of midwives ultimately serves the

"" The question of state initiatives has been critiqued in regard to wife assault and
legal services. See Laureen Snider, Legal Aid, Reform, and the Welfare State, in The
Social Basis of Law: Critical Readings in the Sociology of Law 169 (Stephen Brickley
& Elizabeth Comack eds., 1986); Gillian A. Walker, Family Violence and the
Women's Movement (1990); see also Dawn Currie, Battered Women and the State:
From the Failure of Theory to a Theory of Failure, 1 J. of Hum. Just. 77 (1990)
(analyzing the literature and proposing new approaches).

"I See generally Butter & Kay, supra note 8;. Baker, supra note 112, 17-20 for
examples, such as physician-created entrance examinations, physician-controlled
insurance requirements, and the like.

136 Mason, supra note 85.

'3 See Wayne Roberts, Midwives Move into Modern Medical Mainstream: New
Birthing Profession Pushes Choice, Not Holistic Hardline, Now Magazine, Aug. 13-19,
1992, at 21; Von Wagner, supra note 115. Von Wagner herself is concerned about
funding under the new scheme and focuses on the as yet unresolved issue of funding
for the newly recognized midwifery service. Midwives are fighting for funding to go
to community-based collectives that specialize in continuity of care. Dr. Krieger, the
"grandfather of midwifery," is fighting for birthing centers in Ontario. Both point out
the cost savings over physician/hospital-based care, while the government spokespersons
remain noncommittal.

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hetero-patriarchal hegemony identified by Mary O'Brien. "I The struc-
tures that have alienated women from their reproductive capacity, fetishized
the fetus, and characterized women as enemies of their born and unborn
children are the very structures that have successfully relegated midwives
to peripheral status all over the world. At the same time, the diminishing
of midwives' voices has separated women from a critical advocate and ally
while advancing the ideology that alienates women from their own bodies.
Patriarchal ideology has thus been served, carving the single issue of
reproductive autonomy into several issues, paralleling and advancing an
overall strategy of division and dominance. Birth control and abortion
become different issues from birth attendant and choice; infertility and
reproductive technology are rendered different from one another. Within
this division, class and race are isolated from gender, and issues of quality
of care are isolated from those addressing access to any care at all. The
corollary is the segmentation of "woman" into a series of functions, each
attended by its own discourse, its own experts, and its own place.

I suggest that part of the process of reintegration is the preservation
and advancement of women's traditional ally and advocate in reproduction,
the midwife. The midwifery commitment to women as whole beings,
connected to and through whole communities, exposes the dangerous fallacy
of patriarchal medicine's insistence on splintering women into reproductive
parts, and offers a real alternative. At the same time, the example of the
creativity and tenacity of Ontario midwives and their supporters in not only
surviving, but flourishing in the face of concerted opposition, offers a
model to all activists. Commitment to feminist principles of sharing and
questioning, courage in the face of abuse and aggression, and connection
to age-old wisdom represent an ideal prescription for change.

'3 O'Brien, supra note 47 and accompanying text.

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