After months of fluctuating support and opposition, two Senate committees passed a controversial bill Tuesday that would potentially criminalize unlicensed attendants of a home birth who engage in midwifery duties, causing confusion and concern among lawmakers and the midwife community.
House Bill 1194, which has drawn hundreds of supporting and opposing testimonies since its introduction in January, was passed by the Committee on Commerce and Consumer Protection and the Committee on Judiciary with proposed amendments that include criminalizing attendants of a home birth who “engage in the practice of midwifery.”
That’s concerning for supporters of home births across the state, particularly in rural communities, who face long commutes to hospitals or prefer Native Hawaiian traditional birthing rituals, which, under the latest version of HB 1194, are not explicitly protected by law.
The amendments were originally proposed by the state Department of Commerce and Consumer Affairs, and state that a person can attend a home birth if they were invited by the patient, if the birth is outside a birth facility, if the person does not use the title “midwife” or “licensed midwife” and “does not engage in the practice of midwifery.”
But those amendments caused slight confusion among lawmakers during a public hearing Tuesday, especially those on the Committee on Judiciary, who will continue to discuss the bill in conference, according to Sen. Joy San Buenaventura (D, Puna).
During the hearing, San Buenaventura said, “That has always been my position is that if (attendants) show up (to a home birth), do not receive compensation, are invited by the patient and are not using the title midwife, they have not committed a crime.”
Those attendants include doulas and family members, San Buenaventura said.
“I don’t want to criminalize people who want to attend a birth and are invited and (did not receive) compensation,” she said.
To clarify, Sen. Brenton Awa (R, Kaneohe-Laie-Mokuleia) asked, “So as long as they don’t have the (midwifery) title, they’re not breaking the law?”
Committee Chair Sen. Karl Rhoads (D, Nuuanu-Downtown-Iwilei) hesitated, noting that the “’engage in the practice of midwifery’” clause “is broader than that.”
Confusion lingered until San Buenaventura stated that these discrepancies would be ironed out during conference.
“You know my intent is that if you attend a birth outside a birth facility invited by the patient and (do) not receive compensation and (do) not call yourself a midwife, you’re not a criminal,” San Buenaventura said. “And I’ll make sure of that in conference.”
San Buenaventura’s statement comforted Kristie Duarte, chair of the Hawaii Home Birth Collective, which represents the largest membership of licensed midwives in Hawaii. She said that the amendments presented Tuesday were “shocking.”
Duarte said the outlined definitions of midwifery in HB 1194 are so broad that practically anyone who is present at a home birth could be subject to possible criminal penalties.
“That still is my question: If you cannot engage in the practice of midwifery, what can you even do at a birth?” Duarte said. “It does not support any ability to assist, attend, provide care that the birthing person wants. They no longer have that ability.”
Carrie Ann Shirota, policy director of the American Civil Liberties Union Hawaii, said she was “deeply alarmed” following Tuesday’s result and said the proposed amendment would infringe on reproductive freedom.
“The amendment could even be used to criminalize a grandma or a doula if they are providing maternal care that falls ‘within the scope of midwifery,’” Shirota said. “It’s extremely broad, and it does not matter if this tutu, if the traditional midwife or doula, has years or even decades of experience providing assistance. None of that matters if you read the plain language of what was announced.”
The criminalization would include fines, a criminal conviction or possible imprisonment, Shirota said.
Since its January introduction, HB 1194 has flip-flopped in support from midwives and opposition from the medical community.
The original draft, which outlined rigid requirements for a midwife license under the state, drew a crowd of more than 100 people from the midwife community to testify in opposition to the bill at a public hearing in March.
That hearing also accumulated more than 900 pages of written testimony in support and opposition.
As a result, San Buenaventura adopted two key amendments that provided more pathways for a midwife to be licensed in Hawaii and outlined exemptions for birth attendants, but those are in jeopardy after Tuesday’s hearing.
While Duarte said “the bill was better before (Tuesday),” she said she is hopeful for a better outcome after HB 1194 goes through conference.
“I was personally a little bit more hopeful because I heard Sen. San Buenaventura and her concern,” Duarte said. “To me, that’s a relief that she is concerned still and hopefully will be a great support when it comes to the conference.”
Shirota said the state’s regulation to dictate who can or cannot provide maternal care is “outrageous” in Hawaii, where “we have a history of championing access to abortion and reproductive rights.”
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