Towards a New Status for the Midwifery Profession in
Ontario
Lisa Jezioranski
as elsewhere –
The approach of modem medicine to pre-
venting and combating disease is increasingly
technological and interventionist. A growing
number of commentators argue that when
this philosophy is applied to childbirth,
which is not a disease but a normal life proc-
ess, the experience can be made demeaning
and even dangerous to mother and child.
Midwifery, which takes an holistic approach
to childbirth, offers an alternative to medical
care. However, the regimes of civil and crim-
inal liability in Ontario –
are hostile to the midwifery profession. In the
first part of her article the author outlines the
objections of the medical profession to mid-
wifery, and challenges medicine’s principal
argument that midwifery is unsafe by pre-
senting evidence to the contrary from several
countries. The author then examines the legal
status of midwifery in Ontario. She notes that
practitioners face the preliminary obstacle
that the profession is regarded anachrosti-
cally as the unlawful practice of medicine.
Moreover, the standard of care applied for
the purposes of criminal and civil negligence
is derived almost exclusively from medical
opinion, which, because of its technological
bias, is inappropriate for judging the com-
petence of midwives. The result is that mid-
wives are deprived of the freedom to practice
their profession, and individuals are de-
prived of the right to choose the type of pre-
natal care they consider desirable. The author
concludes by examining and criticising recent
attempts at legislative reform.
Afin de prrvenir et combattre la maladie, la
mrdecine modeme adopte une approche de
plus en plus technologique et intervention-
niste. Or la naissance d’un enfant est un 6v6-
nement naturel et non une maladie. De plus
en plus d’observateurs soutiennent que lors-
que l’approche m~dicale moderne gouverne
une naissance, il en rrsulte une experience
d~gradante, voire m~me dangereuse pour la
mere et l’enfant. Les sages-femmes avec leur
approche holistique de la naissance offrent
une alternative aux soins m~dicaux. Cepen-
dant les regimes de responsabilit6 civile et
criminelle, en Ontario comme ailleurs, sont
hostiles A la profession de sage-femme. Dans
la premiere partie de son article l’auteure pr6-
sente les objections de la profession m~dicale
A la pratique des sages-femmes. Elle r6fute
l’argument A l’effet que l’accouchement par
sage-femme est dangereux en d6montrant
qu’un tel accouchement comporte peu do
risques dans les pays oO il est bien pratiqu6.
12auteure 6tudie ensuite le statut juridique de
la profession de sage-femme en Ontario et
note que l’on regarde anachroniquement
cette profession comme une pratique illgale
de la m~decine. De plus, tant pour la n~gli-
gence criminelle que civile, le (standard of
care ) utilis6 est tir6 de l’opinion m6dicale
qui, A cause de ses pr6jug6s technologiques,
est incapable de juger de la comp6tence des
sages-femmes. I! en r~sulte que les sages-
femmes se voient denier le droit de pratiquer
leur profession et que les futurs parents se
voient denier le droit de choisir le type de
soins pr~nataux qu’ils croient pr6ftrables.
Enfin, l’auteur examine et critique les ten-
tatives rcentes de r~forme du droit en cc
domaine.
1987]
MIDWIFERY IN ONTARIO
Synopsis
Introduction
I.
II. The Case for Midwifery
Philosophies of Childbearing
A. Midwifery and Medicine
B. Home Birth and Hospital Birth
III. The Legal Status of Midwifery in Ontario
A. The Unlawful Practice of Medicine
B. Criminal Liability
C. Civil Rights and Liabilities
IV. Political Status: Models for Regulation
V. Conclusion
And I said of medicine, that this is an art which considers the
constitution of the patient, and has principles of action and reasons in
each case.
Plato: Gorgias
Introduction
Midwifery, which takes an holistic approach to childbirth, is becoming
increasingly accepted as an alternative to medical delivery, which inany view
as excessively technological in its approach to what is essentially a natural
life process. If midwifery is to be integrated into our prenatal healthcare
system, the civil and criminal legal regimes which govern the practice of
medicine will have to be modified to take account of the approach to practice
which differentiates the midwife from the medical doctor.
In order to understand the contemporary controversy over the accept-
ance of midwifery in western society, the historical context of both medicine
and midwifery must first be examined. That is the subject of the first part
of this paper. Although such a vast subject can only be briefly canvassed
here, the contrast between the ethic of the science of medicine and the ethic
92
REVUE DE DROIT DE McGILL
[Vol. 33
of the practice of midwifery is central to an understanding of the issues
involved in the movement towards alternative birthing methods. As Part
II of the paper reveals, this contrast in approach has yielded different out-
comes and success rates for medicine and midwifery. Part III canvasses
issues of civil and criminal liability as they relate to the practice of midwifery
in its present unregulated form, and discusses further issues which will arise
if midwifery is legally recognised. An important focus of inquiry is the
relationship between the individual’s right of self-determination and the
rights imputed to the foetus.
Part IV assesses the present political status of midwifery in Ontario,
and proposes criteria for regulation.
I. Philosophies of Childbearing
As far as is known, the practice of midwifery,I meaning the assisting
of a person throughout childbearing and her process of birthing a child, has
existed throughout all cultures and across all times, and the profession has
been almost exclusively dominated by women.2 It was not until the twen-
tieth century, and only in western societies, that the process of childbirth
was moved to a hospital environment as a matter of course to be controlled
by the practice of medicine. This transition occurred extremely quickly by
historical standards. In 1900 less than 5% of births occurred in hospitals
and most were attended by midwivbs, but by 1972 over 98% of births took
place in the hospital.3 Although the medicalization of childbirth is only a
very recent phenomenon limited both in historical and cultural dimension,
the predominant contemporary social presumption in North America is that
pregnancy and childbirth are medical conditions that can only be appro-
priately and safely dealt with by qualified medical practitioners.
If one accepts, however, that pregnancy and childbirth are natural proc-
esses, as well as being psychologically, emotionally, and socially significant
life occurrences, it becomes clear that the ethic of medicine as a science
‘Interestingly, the difference in philosophy between the two disciplines is manifested in the
meaning of their nominate terms. The word midwife comes from the Old English meaning
“with” (mid) “woman” (wife), and is “a woman who assists women in childbirth” or who
“assists in a creative process”. Obstetrics, on the other hand, is “the branch of medical science
concerned with childbirth and.., treating women … in childbirth”. See Random House Col.
lege Dictionary, rev. ed. (New York: Random House Inc., 1984). Midwifery considers childbirth
a creative process whereas medicine considers it a pathology to be treated.
2J. Litoff, American Midwives (London: Greenwood Press, 1978) at 3.
3R. Hubbard, “Legal and Policy Implications of Recent Advances in Prenatal Diagnosis and
Fetal Therapy” (1982) 7 Women’s Rights L.R. 201 at 202. See also D. Evenson, “Midwives:
Survival of an Ancient Profession” (1982) 7 Women’s Rights L.R. 313 at 315.
1987]
MIDWIFERY IN ONTARIO
focussing almost singularly on biological and physiological pathology4 is
inadequate to cater to all aspects of the childbirth experience. As one ob-
stetrician and proponent of midwifery has stated:
Doctors are trained to look after disease, not to facilitate the normal. The
continuous care a midwife delivers is something which a doctor is totally
incapable of.5
For the medical profession, the command of an esoteric body of knowl-
edge brings with it the power of an unquestioned control over the health
of others; those outside the medical sphere (including members of the legal
profession) defer to medical opinion and expertise. Simultaneously with the
granting of power over health care to the medical profession, the power and
autonomy of the individual over her or his physical health is lost. The
patient becomes the passive object of the doctor’s expertise, the physiological
terrain on which the physician’s work is performed. This form is manifested
in the context of childbearing; the patient lies supine, possibly anaesthetized,
feet in stirrups. The physician “delivers ‘ 6 the child, and may do so by use
of forceps, induction or Caesarean section. Due to the emphasis of the
profession on medicine as a biological science, the physical aspect of the
process in the hospital context becomes paramount, at the expense of the
quality of childbirth as an emotional and psychological life experience. In
contrast, the philosophy of midwifery is to recognise the significance of the
experience of bringing a newly created human being into the world, and
attempt a supportive rather than a usurpative approach to the birth process
by assisting the individual to deliver her child instead of delivering it in
her place.7
The transfer of the care and assistance of persons in childbirth from
midwives to the medical profession has been documented to be essentially
the result of an historical conflict between the two professions:
What is so astounding about the rise of male professionals over female healers
is that it was not a process which resulted from changes in medical science.
4See H. Fabrega, Disease and Social Behaviour (Cambridge: MIT Press, 1974) at 1; L. Ei-
senberg & A. Kleinman, eds, “Clinical Social Science” in The Relevance of Social Science for
Medicine (London: D. Reidel, 1981) at 1 ff R.H. Bannerman, “Traditional Medicine in Modem
Health Care Services” (1980) 6 Int. Rel. 731.
5M. W. Enkin, as quoted in J. Powis, “The Quiet Revolution” (1981) 77:2 The Canadian
Nurse 26 at 26.
6As one mother and lay midwife phrased it, “I gave birth. I wasn’t delivered. The difference
[is] between doing and being done to.” S. Arms, Immaculate Deception (Boston: Houghton
Mifflin Co., 1975) at 211.
7B.A. McCormick, “Childbearing and Nurse-Midwives: A Woman’s Right to Choose” (1983)
58 N.Y. Univ. L. Rev. 661 at 668.
McGILL LAW JOURNAL
[Vol. 33
Rather, it was the result of a political battle –
monopoly was the prize –
modem scientific techniques. 8
in which the right to a medical
that was fought long before the development of
The result of this has been a legally regulated and recognised practice
,ofmedicine, but not midwifery. However, the debate between the professions
of midwifery and medicine over the competence of midwives to practice
has continued through to the present day. The medical community actively
continues to discourage midwifery practice, 9 and as recently as 1975, the
position of the American College of Obstetricians and Gynecologists on
childbirth was stated as follows:
Labor and delivery, while a physiologic process, clearly presents potential haz-
ards to both mother and fetus before and after birth. These hazards require
standards of safety which are provided in the hospital setting and cannot be
matched in the home situation.’ 0
In Ontario, there are presently three major factions on the issue of the
appropriate mode of regulation and integration of midwives into the health
care system. These are represented by the views of midwives themselves,
of nurses, and of physicians. The Position Statement’I of the College of
Physicians and Surgeons of Ontario, which is primarily directed towards
enunciating the duties of physicians, “discourages” their involvement in
home births:
8Community Task Force on Maternal and Child Health, Childbearing Families and the Law:
Midwifery Law (Winnipeg: Community Task Force on Maternal and Child Health, 1981) at 3
[hereinafter Community Task Force]. See also Litoff, supra, note 2, and Evenson, supra, note
3. Others contend that “it is quite clear that this legislation [prohibiting midwifery] is best
understood as directed to the protection of children and, to a lesser extent, their mothers and
which had the ancillary effect of creating a professional monopoly …. J.M. Eekelaar & R.W.J.
Dingwall, “Some Legal Issues in Obstetric Practice” (1984) J. of Social Welfare L. 258 at 263.
Apparently, however, the “protection of children” among the lower class, immigrant and rural
populations was not a major concern, as the practice of midwifery among these groups has
been tolerated by both the medical and legal professions throughout the 20th century. K,
Yagerman, “Legitimacy for the Florida Midwife: The Midwifery Practice Act” (1982) 37 U. of
Miami L. Rev. 123 at 128. Moreover, there is evidence directly supporting the “battle for
monopoly” theory. For example, when the first bill to regulate midwifery in England was
introduced in the legislature, several MPs opposed it, one of them explaining that “he had
received representations from medical men stating that the passage of this Bill would deprive
them of much legitimate practices which they at present enjoyed.” See B. Cowell & D. Wain-
wright, Behind the Blue Door: The History ofthe Royal College ofMidwives 1881-1981 (London:
Cassell, 1981) at 23.
91bid. at 221; Evenson, supra, note 3 at 314-15.
‘0As quoted in G.J. Annas, “Legal Aspects of Homebirths and Other Childbirth Alternatives”
in D. Stewart & L. Stewart, eds, Safe Alternatives in Childbirth (Chapel Hill: NAPSAC, 1976)
161 at 161. See also below, text accompanying notes 87ff.
“College of Physicians and Surgeons of Ontario, “Out of Hospital Births – Position State-
ment”, College Notices, January 1982.
1987]
MIDWIFERY IN ONTARIO
The College of Physicians and Surgeons of Ontario believes that out of hospital
births should be discouraged because of the additional risks to the mother and
the baby …. The risks to both the mother and the child are greatly reduced
when the baby is born in a hospital …. [T]he perinatal mortality rate for home
deliveries in Great Britain is more than 60% higher than the overall rate. The
College firmly believes that the safeguards afforded by the hospital greatly
outweigh any personal dissatisfaction with some hospital procedures.’ 2
The College quotes no source in its statement for the statistics cited,’ 3
which are contrary to the bulk of available data on perinatal and maternal
mortality rates. This data is discussed below.
The role the physicians’ group proposes for midwives is a minimal one,
serving only to support physician medical care in a hospital setting.
This type of system was proposed as early as 1970 by Professor R.D.
Fraser in a report commissioned by the then Ontario Government Com-
mittee on the Healing Arts. The report amounts to the insulting suggestion
that midwives could best be utilized as a cheap labour resource to perform
the mundane procedures requiring only a marginal level of competence, in
order to reduce the workload of physicians:
[A] midwife could save two-thirds of a physician’s time in examining a nor-
mally pregnant woman. This time could be increased if an obstetrician had a
midwife working with him and if the midwife performed the lower-level com-
petence services during the office visits that the doctor supervised…. The phy-
sician usually is too busy to chat with the patient, and the patient sometimes
shows a reluctance to talk freely with the physician about her problems. This
is partly because he is generally a male, and partly because she feels foolish
when she reveals her naivete to a person of his assumed stature. The role thus
falls to other types of personnel ….
There is a vital gap here that could be filled by a midwife….14
After analyzing certain statistics, Frazer concludes that tremendous sav-
ings would accrue if a midwife were paid approximately one third of a
physician’s salary and performed services requiring a lower level of com-
‘2Ibid.
B3Interestingly, the College stated that “[t]he data contained in this policy statement was
provided to the College on a confidential basis by the Royal College of Physicians and Surgeons
of Great Britain.” Jane Ross, Executive Assistant to the Registrar of the College of Physicians
and Surgeons of Ontario, in a letter to the author dated 22 March 1985. This author can
perceive no rationale for applying the concept of “confidentiality” to what are presumably
objective statistics. On the contrary, it is accepted practice in the scientific community that the
legitimacy of statistical evidence and conclusions drawn therefrom arises from disclosure of
the sources of data and methods used to compile them. One can only conclude that where this
objective information is subjectively kept “confidential”, the legitimacy of the evidence is at
least questionable. See further, infra, note 59 and accompanying text.
14R.D. Fraser, Selected Economic Aspects of the Health Care Sector in Ontario (Toronto:
Queen’s Printer, 1970) c. 8 at 174ff.
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[Vol. 33
petence, such as taking the mother’s height, weight, temperature and blood
pressure, and standing by during the period of labour, which can last as long
as eighteen hours or more.
Clearly the “vital” role of “chatting” with the expectant mother
throughout her pregnancy and sitting with her during hospital labour at one
third a physician’s salary would satisfy the interests of neither mothers nor
midwives. The view that midwives should hold only a minor supportive
role as determined by and under the supervision of a physician is prevalent
throughout the medical profession. This model does not account for mid-
wives’ legitimate interest in practicing as a skilled profession, and fails to
deal with the range of problems inherent in physician and hospital care that
are the concern of those who would prefer to elect midwifery care.’ 5
The second model is that proposed by the nursing profession. The
position of the College of Nurses of Ontario was recently stated as follows:
The College’s present position is that midwifery should be recognized as a
health care specialty based on nursing preparation, with additional formal
training in maternity and infant care …. The nurse midwife would collaborate
with physicians and other health care professionals.’ 6
There are several problems with this system that have been revealed
by the experience of the United States, where nurse-midwifery is the pre-
dominant form of regulated midwifery.’ 7 Most states have legislated sig-
nificant restrictions on nurse-midwives practicing in accordance with the
ethic of midwifery, such as a prohibition on attending home births, a re-
quirement of physician supervision, and either a restriction of nurse-
midwifery care to the hospital setting or denial of hospital admitting priv-
ileges for nurse-midwives.’ 8 These restrictions on midwifery practice can
have further ramifications. In some states where midwifery was legalized
only in the hospital setting, people have defied the law and turned to lay
midwives for service at home births. On the other hand, denial of hospital
privileges to nurse-midwives has also given rise to conflict, and there has
been at least one successful antitrust action by nurse-midwives on this basis
against a hospital in the U.S.19 Nor have pressures on doctors not to col-
‘5See below, part II.
‘6″Midwifery Gives Birth to Many Issues” (1985) 10 College of Nurses of Ontario Com-
munique 1 at I.
“7Although the American statutes regarding midwifery and practice of medicine vary from
state to state, most require midwives to hold a degree in nursing and a diploma from a college
for nurse-midwives, to pass an examination and be licensed or certified, generally with the
American College of Nurse-Midwives.
18See McCormick, supra, note 7 at 705.
19Nurse Midwifery Associates v. Hibbett, 549 ESupp. 1185 (D.Tenn. 1982).
1987]
MIDWIFERY IN ONTARIO
laborate with nurse-midwives or to perform home births ceased following
the institution of regulated midwifery.20
Many doctors … feel constrained by threats to their malpractice insurance;
there is also pressure from disapproving peers. In truth, most malpractice
insurers will not cover a physician who assists at home births, and some phy-
sicians have lost their hospital admission privileges through participation in
home births. 2’
These conflicts reveal the unworkability of forced collaborative practice
when hospitals or physicians are given the last word.
Although the College of Nurses of Ontario would accept out-of-hospital
births, it believes that these should be allowed only for “low-risk” individ-
uals in “birthing centres” staffed by both nurses and physicians, and like
the College of Physicians and Surgeons it too discourages home birth. 22
Thus despite the fact that home birth has been shown to be beneficial for
normal childbirth, this option would be precluded if midwifery were made
a nursing specialty, since nurse-midwives do not.approve of home births. 23
Furthermore, a “birthing centre” staffed with physicians and nurses would
hardly fulfill the ethic of midwifery, and smacks suspiciously of being a
euphemism for what is really another form of regular hospital care. As
Evenson describes the practises of nurse-midwives in such birthing centres
in the United States,
one of the distinguishing characteristics of the nurse-midwife is that, unlike
lay midwives, she is institution-oriented by training and thus pathology-
oriented, making her more disposed toward medical intervention. But even if
she were not, institutional directives leave her little room to exercise her own
best judgement in individual cases … despite statistical evidence that well over
70% of all births involving healthy women will not require medical intervention
of any kind, birthing centres frequently screen out as many as half of those
women who apply, and a third of those who are initially accepted.24
20The American College of Obstetricians and Gynecologists has asserted that home birth is
tantamount to “child abuse”, and has called on all physicians to deliver more babies in order
to stop the growth of nurse-midwifery practice. See Evenson, supra, note 3 at 324.
21R.G. Devries, Regulating Birth: Midwives, Medicine and the Law (Philadelphia: Temple
University Press, 1985) at 49.
22College of Nurses of Ontario, “Guidelines For Registered Nurses Providing Care to In-
dividuals and Families Seeking Alternatives to Childbirth in a Hospital Setting” (November
1983) at 3.
23The American College of Nurse-Midwives has also taken a formal position against home
births. See M.E Forrest, “Natural Childbirth: Rights and Liabilities of the Parties” (1978-79)
17 J. Fam. L. 309 at 330.
24Evenson, supra, note 3 at 323. Devries confirms that the establishment of close institutional
relationships with medical personnel alters the midwife’s style of practice, and several studies
“document that the formal ties between doctor and midwife necessitated by licensure result
in the more frequent resort to physician assistance by midwives.” Devries, supra, note 21 at
107 and 111.
McGILL LAW JOURNAL
[Vol. 33
Finally, the third approach to the regulation of midwifery is that taken
by the Ontario Midwives Coalition (now the Ontario Association of Mid-
wives) in support of a profession of “direct-entry midwifery,” 25 whereby an
individual may be directly trained as a midwife without specifically having
been trained in nursing or medicine. The proposal is generally one for three
to four years training and education, and there is good reason to expect that
this should be sufficient for independent practice.26 Certainly a comparison
to medical training makes any contention that such training be required for
childbirth attendants seem unwarranted, in view of the following
observation:
Any physician may attend a birth. Students in California medical schools,
however, receive only three to nine weeks obstetrical training, and it is possible
to graduate from medical school without any clinical training in obstetrics.
Most lectures received by the medical students were on complications in birth
and how to treat them…. The medical students received only one lecture on
the conduct of normal pregnancy….27
The recommendations of the Ontario Association of Midwives 28 set
out comprehensive means of ensuring ongoing education and competence
in the profession, and even include an “Informed Choice Agreement” for
mothers selecting midwifery services. 29 The proposal describes a three year
course of education, encompassing such diverse subjects as biology, caring,
counselling, psychology, communication, cultural values, client education,
sociology and environment. This reflects a multifaceted theory of health
care, as an art, a science and a social phenomenon. Completion of the course
of study would yield “a diploma or degree through a course of instruction
in an accredited school of midwifery as approved by the College of Mid-
314.
25Ontario midwives favour the use of this terminology rather than that of “lay midwifery”
to avoid negative connotations associated with the latter, which may imply an untrained, non-
specialist individual.
26See Evenson’s comparison of direct entry and nurse midwifery training, supra, note 3 at
27J.J. Tachera, “A ‘Birth Right’: Home Births, Midwives, and the Right to Privacy” (1980)
12 Pacific L.J. 97 at 113-14. In Ontario, students in their last year of medical school get four
weeks rotation in each area as a “clinical clerk” in which they would get exposure to a delivery
room but would not perform a delivery. Beyond this, exposure depends on where the student
desires to specialise. Those specialising in family practice get four weeks further exposure during
internship and another eight during residency. Women’s College Hospital in Toronto has pro-
posed to increase this amount in 1987 to twelve weeks. Again, however, any physician is legally
“qualified” to attend a birth. This seems particularly unwarranted when compared to the
extensive education midwives undergo.
28The proposals were communicated to the Ontario Legislature in submission to the Health
Professions Legislation Review Committee. See below, text accompanying note 149.
29Midwives Coalition, Third Brief to the Committee (October, 1985) Appendix 6.
1987]
MIDWIFERY IN ONTARIO
wives.”‘ 30 The group also proposes a mandatory refresher course and ex-
amination for those members who have not practiced in at least five years,
and every one to three years a member must furnish proof of continuing
education. The conduct of the profession would be overseen by a College
of Midwives, independent of the medical profession.
The Association also proposes that midwives be responsible for the
screening of clients for risk factors and physician referral, under a complex
five-level set of screening standards now in use. The system requires con-
sultation with other professionals when certain indicators are present:
[R]isk level “5” is “high risk” and requires specialist attention, while risk levels
1-4 require differing levels of monitoring and assessment in accord with other
risk factors. Under OAM standards additive risk assessments over 3 require
consultation with peers. 3’
In the result, although the one point of agreement among the three
opposing camps in Ontario is that midwifery should be regulated by some
standard, each group desires a professional monopoly over normal preg-
nancy and childbirth care, and their views as to the extent and nature of
the education desirable differ accordingly.
II. The Case For Midwifery
A. Midwives and Doctors
In recent years, much statistical research has been undertaken, by those
both within and without the medical profession, to determine the relative
competence of midwives and physicians, and the value and efficacy of ob-
stetric practices and techniques. The compiled statistical data32 assessing
relative success are based primarily on maternal mortality rates and peri-
natal prematurity and mortality rates, and are resolved overwhelmingly in
favour of midwifery practice, 33 since such rates have been shown to be either
comparable for both professions or lower for midwives. In countries where
midwifery is extensively used, perinatal mortality rates have been better
than for countries relying more heavily on physician and hospital births.
30Ontario Association of Midwives, First Brief to the Committee (December 1983).
31Midwives Coalition, Second Brief to the Committee (June 1984) at 39. See pages 36-41
for an outline of the standards used. There are a total of twenty-five categories of grouped risk
factors; five levels for each of five stages of care, i.e. historical risk, prenatal risk, labour and
delivery risks, postpartum maternal risks and postpartum risks to the child.
32The bulk of data has been obtained since the 1960s, after the revival of midwifery practice
in the form of the profession of nurse-midwifery, and thus is not necessarily restricted to lay
midwifery practice.
33Evenson, supra, note 3 at 315.
REVUE DE DROIT DE McGILL
[Vol. 33
For example, a 1973 study in Holland, where midwives attended 37% of all
births and 67% of home births (which constituted over half of all births),
the infant mortality rate was the third lowest worldwide at 1.15%, whereas
that of the United States, a country with one of the most sophisticated and
advanced levels of medical technology, was 1.77%.34 Several comparative
studies within the United States have yielded similar results. 35 This statis-
tical evidence may be legitimately questioned 36 on the ground that midwives
generally attend normal low-risk births and refer cases with complications
to qualified medical practitioners, both as a matter of general practice among
lay midwives and as a matter of legislative requirement for nurse-midwives.
The fact that physicians and hospitals are dealing with a greater proportion
of higher risk births may adversely affect their success rate. However, results
are comparable for all studies undertaken, and there is little or no conflicting
data. Furthermore, most such studies were performed by the medical profes-
sion itself so there can be little allegation of bias. Most importantly, other
studies that control for these risk factors have revealed the same or better
outcomes, favouring midwifery practice.
The studies which best illustrate the favourable outcomes produced by
midwifery are those involving the institution of midwifery programs in
circumstances previously dominated by physicians. The most compelling
evidence for the effectiveness of midwives arose from two studies of the
temporary introduction of a midwifery program in a California hospital for
the years 1960 through 1963 to relieve a medical manpower shortage. 37 The
neonatal mortality rate which for 1959 had run at 2.39%, fell to 1.03% during
the program. When obstetrician manpower increased, the California Med-
ical Association succeeded in terminating the program. After reinstitution
of obstetrical care, the neonatal mortality rate rose to 3.21%, more than
triple the rate of that under midwifery care. Similarly, the 11% prematurity
34Tachera, supra, note 27 at 101.
35The results of many of these studies are reviewed in the literature. See, e.g., H.M. Caldwell,
“Bowlandv. AMunicipal Court Revisited: A Defense Perspective on Unlicensed Midwife Practice
in California” (1983) 15 Pac. L.J. 19 at 25; S. Tom, “Nurse-Midwifery: A Developing Profes-
sion” (1982) 10 Law, Med. & Health Care 262; Tachera, supra, note 27 at 100; G.A. Hoff &
L.J. Schneiderman, “Having Babies at Home: Is it Safe: Is it Ethical?” (1985) 15 Hastings Ctr.
Rep. 6:19 at 6:20.
36C. Slome et aL, “Effectiveness of Nurse-midwives: A Prospective Evaluation Study” (1976)
124 Am. J. of Obs. & Gyn. 177 at 178.
37T.A. Montgomery, “A Case for Nurse-Midwives” (1969) 105 Am. J. of Obs. & Gyn. 309;
B.S. Levy, ES. Wilkinson & W.M. Marine, “Reducing Neonatal Mortality Rate with Nurse-
Midwives” (1971) 109 Am. J. of Obs. & Gyn. 50. See also Caldwell, supra, note 35 at 26.
1987]
MIDWIFERY IN ONTARIO
rate fell to 6.4% during the midwifery program, and rose again to 9.8% after
its termination.38
A review of the available data makes it clear that midwifery is not only
an adequate method of birth care, but is arguably a safer and more effective
form of care for normal childbirth than is standard physician care. It will
be seen that the statistical evidence that supports this conclusion can be a
useful tool before forums such as courts and the legislature in the process
of legitimizing midwifery in the legal context.
B. Home Birth and Hospital Birth
In addition to general statistical evidence supporting the benefits of
midwifery care, there is significant evidence regarding specific hospital prac-
tices that leads compellingly to the view that midwifery is a preferable form
of care, and that hospital care is in fact a poorly adapted means of dealing
with normal childbirth.
From its inception, the practice of dealing with childbirth as a matter
of medical specialization has produced a range of iatrogenic problems. It
was not until the latter part of the nineteenth century that antisepsis was
discovered 39 and thus that the practice of treating various patients in succes-
sion had contributed to maternal and infant infection, and was largely the
cause of the rampant epidemic of puerperal fever which existed throughout
that century.40 It has been observed that even today institutional obstetric
care can contribute to increased rates of maternal and infant infection,41
due to the high bacteria level present in hospitals. In contrast, home births
are less likely to result in infection because mothers have developed im-
munity to bacteria in their homes.42
The development of sophisticated technology in obstetrics has also con-
tributed to increased complications. Even such simple hospital practices as
the invariable use of the supine position (sometimes with the demeaning
device of arm straps) are inapposite to childbirth. Other positions are more
38 Dempkowski, “Future Prospects of Midwifery in the United States” (1982) 27 J. of Nurse-
Midwifery 9; see also J. Widhalm Doyle, “Midwifing the Addescents at Lincoln Hospital”
(1979) 24:4 J. of Nurse-Midwifery 27; and similar additional studies reviewed in Slome, supra,
note 36; Tom, supra, note 35; Evenson, supra, note 3; Levy, Wilkinson & Marine, supra, note
37; Montgomery, supra, note 37.
39This occurred through application of the work of Louis Pasteur and Joseph Lister to ob-
stetrics. See Litoff, supra, note 2 at 19.
4 0Hubbard, supra, note 3 at 206.
41Caldwell, supra, note 35 at 24. Caldwell cites two studies, one indicating infection rates to
be four times higher in the hospital than at home, the other showing that infection rates for
obstetric surgery actually increased by 26 for the period of 1975 to 1978.
42Tachera, supra, note 27 at 102.
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conducive to effective use of the abdominal muscles, and throughout most
of the world a crouching position is most commonly adopted for delivery. 43
In addition, the hospital practice of requiring bed confinement during labour
has adverse physiological effects, including increased need for medication,
prolongation of labour and increased abnormal foetal heart rates. 44
While more interventionist obstetric procedures such as the use of for-
ceps, drugs, episiotomies and Caesareans can be beneficial when used where
necessary, they also carry inherent risks of damage. Persuasive evidence has
recently been adduced showing that such techniques are overused and in
large measure unnecessary, particularly for normal births.45 Time constraints
and the issue of allocation of hospital resources mean that labour may be
induced or accelerated by mechanical or chemical means, not in the interest
of the health of the mother or child, but to economise on hospital staff time
and resources and make facilities available for other births. The risks as-
sociated with excessive use of interventionist procedures are borne out in
fact. In the United States between 1915 to 1930 the infant death rate from
birth injuries actually increased. Two separate reports found the causes for
this increase to be “lack of prenatal care and excessive operative procedures,
often improperly performed. ’46
In recent years, attention has been focused on the alarmingly high rate
of Caesarean births, which in North American hospitals exceeds that of
anywhere else in the world. A 1979 report of the U.S. Department of Health,
Education and Welfare found that “Caesarean section is associated with a
maternal mortality rate 3 to 30 times that found among vaginally delivered
43See, e.g., Bannerman, supra, note 4 at 743. Yagerman, supra, note 8 at 137 observes that
“the disadvantages of [the supine] position, one adopted for the convenience of the delivering
attendant, are now widely accepted. The position alters the normal fetal environment, creating
distress to the child, decreases the intensity of contractions, and obstructs the normal process
of childbearing.”
44D. Haire, “Improving the Outcome of Pregnancy Through Increased Utilization of Mid-
wives” (1981) 26 J. of Nurse-Midwifery 5 at 6, cited in McCormick, supra, note 7 at 691.
45Perhaps the most convincing evidence against interventionist hospital procedures is con-
tained in a study by Mehl, which controlled for risk factors and matched for comparability
1046 mothers in homebirth with 1046 in hospital birth. The study found
marked differences in the use of invasive obstetric procedures between the two
groups. In the hospital group, the caesarean section rate was three times higher (8.2
versus 2.7 percent); forceps were used much more often (30.6 versus 1.2 percent);
and birth injuries were increased (3 versus 0 percent). Episiotomics were performed
almost routinely in the hospital group as opposed to the homebirth group (87.4
versus 9.8 percent), but there were still more lacerations in the hospital group.
See L. Mehl, “Scientific Research on Childbirth Alternatives: What it Tells Us About Hospital
Practice” in Stewart & Stewart, supra, note 10 at 171-208, reviewed by Hoff& Schneiderman,
supra, note 35 at 20.
46Evenson, supra, note 3 at 316. The studies were performed by the New York Academy of
Medicine and the White House Conference on Child Health and Protection.
1987]
MIDWIFERY IN ONTARIO
mothers. ‘ 47 Caesarean section also produces increased risks of foetal death
due to respiratory distress syndrome. 48 The extensive use of foetal heart
monitors has compounded these problems. Studies suggest that “electronic
fetal monitors are not accurate predictors of fetal stress. False stress indi-
cations increase the likelihood of Caesarean section which results in greater
mortality and morbidity. ‘ 49 The same study reveals that utilization of foetal
monitoring devices also carries risks of injury to both mother and foetus,
including perforations of the uterus or placenta and lacerations to the
foetus.50
Virtually all drugs carry with them possibilities of side effects, and the
general medical and ethical problem surrounding the use of drugs for which
the effects may be unknown also has a place in obstetrics. One need only
recall the disastrous effects of the use of such drugs as thalidomide and DES,
prescribed to prevent miscarriage or for the “symptom” of morning sickness,
to realise that the benefits of such intervention are at least questionable. 5′
The problem of drug usage is particularly exacerbated in the context of
pregnancy, since the complex and intricate process of foetal development,
and thus the effects of drugs thereon, is still not well understood by
biologists. 52
A final consideration on this issue is that of the psychological and social
elements in the process of childbearing. It takes little imagination in view
of the foregoing survey to observe that hospital childbirth does not enhance
the quality of the experience of bringing another human being into life, and
the consensus of available evidence appears to be that midwifery is pref-
erable in this respect. 53 Anecdotal evidence of women having experienced
47U.S. Dept of Health, Education & Welfare, Cost and Benefits of Electronic Fetal Monitoring:
A Review of the Literature, DHEW Pub. No. 79-3245 (1979), cited in Evenson, supra, note 3
at 319 [hereinafter H.E.W.].
48″Study of Respiratory Distress Syndrome in Newborns Revealed”, The [Chicago] Tribune
(10 February 1982) 1, cited in Evenson, supra, note 3 at 319.
49H.E.W., supra, note 47.
1Olbid.
5’These are not rare occurrences. There are many drugs for which the detrimental side effects
have outweighed the benefits of reducing risks by causing severe damage to newborns. Stil-
boestrol, for prevention of miscarriage, can cause vaginal cancer in the offspring; Synthetic
progestin, also for prevention of miscarriage, results in masculinized female babies; some anti-
convulsant drugs have resulted in facial clefts; and Aminopterin, a cancer treatment drug, can
cause severe cranial and nervous system deformities. See E.W. Keyserlingk, “The Unborn
Child’s Right to Prenatal Care (Part I)” (1982) 3 H.L.C. 10 at 15.
52See Hubbard, supra, note 3 at 209.
53A. Thaiss, “Clients’ Perceptions of Physicians’ and Midwives’ Prenatal Care” (1980) 80
Am. J. Nursing 684. The survey “shows that client satisfaction with prenatal care provided by
midwives surpassed satisfaction with physicians, particularly on the question of confidence.”
See Evenson, supra, note 3 at 321.
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both hospital and midwife assisted homebirths shows a preference for the
latter.54 Interventionist practices of hospitals can serve to minimize personal
fulfillment of the birthgiving experience, and may even generate adverse
physiological consequences. Standard hospital procedures such as shaving
the pubic area and requiring an enema before birthing have proven unnec-
essary, even detrimental, to physiological health, 55 and further serve to de-
humanize and to demean the experience of giving birth. At least one study
has attributed the more favourable prematurity and mortality rates of home
birth in part to “a general lack of fear and other maternal stresses usually
present in hospital birth. ‘ 56 Furthermore,”hospital policies may prevent a
husband from being with his wife during childbirth, require the woman to
remain in bed throughout labour, or separate the mother from her newborn
within minutes of birth. ‘ 57 Families have no choice but to comply with
such policies since, although they have been challenged in the American
courts several times on constitutional grounds, judges have consistently held
them to prevail over patients’ rights and interests. 58
Despite large quantities of detailed evidence showing the dangers as-
sociated with hospital procedures and the benefits of midwife-assisted births,
coupled with a distinct lack of evidence 59 to the contrary, proponents of
medicalization continue to assert the necessity of hospitalization for child-
54See Arms, supra, note 6, and S. Kitzinger, “Women’s Experiences of Birth at Home” in S.
Kitzinger & J.A. Davis, eds, The Place of Birth (Toronto: Oxford University Press, 1978) at
135.55Yagerman, supra, note 8 at 136 notes several studies that show that pubic shaving increases
the risk of postpartum infection, indicating that the practice may in fact be detrimental rather
than simply benign.
56See Caldwell, supra, note 35 at 25.
57McCormick, supra, note 7 at 672. Several studies have shown that the policy of separating
mother and child at birth may interfere with “maternal-infant bonding”, and have long-term
negative physiological and emotional effects. J.A. MacFarlane, D.M. Smith & D.H. Garrow,
“The Relationship Between Mother and Neonate” in Kitzinger & Davis, supra, note 54 at 185;
and Yagerman, supra, note 8 at 137.
58See Hulit v. St. Vincent’s Hospital, 520 P.2d 99 (Mont. 1974), Fitzgerald v. Porter Memorial
Hospital, 523 E2d 716 (7th Cir. 1975) and Baier v. Woman’s Hospital Foundation, 340 So.2d
360 (1st Cir. 1977). Because constitutional rights protect only against state action, such suits
are generally ineffective.
59Indeed, after a reasonably diligent search, this author could find absolutely no data sup-
porting the contention that for health outcomes medicine is superior to midwifery. Devries
notes that one study done by the ACOG is frequently referred to by physicians “as proof that
infant death in home births was two to five times greater than in hospital birth”, but he further
observes that the data are questionable and states that “the study is referred to by innumerable
physicians, but not once have I been able to locate a reference to its place in publication.”
Devries, supra, note 21 at 134 and 168. See also M. Tew, “The Case Against Hospital Deliveries:
The Statistical Evidence” in Kitzinger & Davis, supra, note 54 at 55.
1987]
MIDWIFERY IN ONTARIO
birth.60 However, a general social trend in recent years to question the in-
fallibility of medical judgment has led to an increased willingness on the
part of the public to reject the contention that hospital care is necessary for
childbirth, and to move towards alternative and more fulfilling methods of
maternity care. In view of the fact that midwifery care appears on the evi-
dence to be more in the interest of public health than hospital care, this
progression should be encouraged. It should be emphasized, however, that
this does not mean medical obstetrics no longer has a place in the care of
women undertaking pregnancy and childbirth. While midwifery services
should be provided to the public to meet the demand for more satisfying
forms of birth care and, as discussed, there is much evidence revealing the
objective health benefits of midwifery, a health care system incorporating
both obstetrics and midwifery should be designed in such a way that each
service is utilized where appropriate. A distinction should be made between
the normal, healthy process of pregnancy and childbirth, which should be
dealt with by the practice of midwifery, and disease or illness complications
that may arise in or affect the natural childbearing process, which should
be dealt with by the medical profession. Although this distinction is perhaps
not easy to make in practice, it is nevertheless a crucial one. We have seen
that historically it has been the clouding of this distinction that has led to
the excessive use of highly interventionist medical practices detrimental to
the health interests of the normal individual.
III. Legal Status of Midwifery in Ontario
A. The Unlawful Practice of Medicine
Although midwifery is still practiced throughout most of the world in
lay form and is the predominant form of birth care, it can now be legally
practiced in most industrialized countries only if licensed or certified. The
heavy regulation of the health professions, which became the norm between
1900 and 1930, contributed to the demise of the traditional lay midwife6′
by requiring medical education and licensing to practice. Although there
are a few countries, notably Sweden, Finland, Holland 62 and England, in
60See, e.g., U.K., Standing Maternity and Midwifery Advisory Committee, Report on Dom-
iciliary Midwifery and Maternity Bed Needs (London: HMSO, 1970) (“The Peel Report”) as
cited in Tew, supra, note 59 at 55.
61Litoff, supra, note 2 at 141.
62Sweden, Finland and Holland use midwifery services extensively and generally have the
best infant mortality rates worldwide. See Community Task Force, supra, note 8 at 4. The
obstetrician/midwife debate occurred in Holland in 1880, when it was decided that home births
should be encouraged, since they were statistically substantially less dangerous than hospital
births. Midwifery has since been the predominant form of birth care, although ironically Dutch
physicians are now arguing for greater hospital care. See G.J. Kloosterman, “The Dutch System
of Home Births” in Kitzinger & Davis, supra, note 54 at 85.
McGILL LAW JOURNAL
[Vol. 33
which midwifery has survived the industrial era as the normal practice for
childbirth, widespread interest in reviving the practice of midwifery in North
America did not reach substantial levels until the 1960s. In the United States
throughout the 1960s and 1970s, many states introduced legislation regu-
lating midwifery practice as public interest in “natural childbirth” methods
increased. 63 However, by this time the medical profession already had a
firm stronghold on the management of childbirth and birthing procedures.
Perhaps because of the relatively late date at which legal recognition of
midwifery in the United States occurred, most states did not institute reg-
ulation of lay midwifery as an independent profession (which is the case in
most other countries), but rather a compromise was reached in the devel-
opment of the “nurse-midwife”, a professional having a full education as
a registered nurse, and additional education in the specialty of midwifery.
The emphasis on the practice of nurse-midwifery rather than lay midwifery
developed at the same time as interest in independent nurse practitioners
was growing.64
In contrast to both the recent American experience and to the situation
in England, where midwifery has been regulated since 1902,65 the provinces
of Canada at present have sparse or no legislation providing for the regulated
practice of midwifery. A recent report notes that “of the two hundred and
ten countries in the World Health Organization, only eight, including Ca-
nada, are without systematic provision for support by a midwife during
normal childbirth. ’66 Most provinces bar the practice of obstetrics or mid-
wifery by anyone other than a licensed physician. 67 However, Newfoundland
has a Midwifery Act allowing for regulation of midwifery practice, and New
Brunswick has no restriction nor regulation of the practice of midwifery at
all.68 Nevertheless, because large portions of Canada are mostly rural with
little access to full medical services, the practice of midwifery has survived
in remote areas through traditional means as well as through Outpost Nurs-
63Hubbard, supra, note 3 at 203.
64See also N. Baker, “Entrepreneurial Practice for Nurses: A Response to Hershey” (1983)
11 Law, Medicine and Health Care 257; N. Hershey, “Entrepreneurial Practice for Nurses: An
Assessment of the Issues” (1985) I1 Law, Medicine and Health Care 252; M.A. Wolfe, “Court
Upholds Expanded Practice Roles for Nurses” (1984) 12 Law, Medicine and Health Care 26.
65See J. Finch, “Paternalism and Professionalism in Childbirth – I” (1982) 132 New L.J. 995.
66Community Task Force, supra, note 8 at 1. The other seven countries are Venezuela,
Panama, New Hebrides, El Salvador, Dominican Republic, Columbia and Burundi. The World
Health Organization, of which Canada is a member, is a proponent of promoting traditional
health practices such as midwifery and fostering integration of such practices with Western
medical techniques. See Bannerman, supra, note 4 at 745-47.
67Community Task Force, supra, note 8 at 5.
68 Ibid.
1987]
MIDWIFERY IN ONTARIO
ing. 69 Several Canadian nursing schools offer diplomas in maternal care
adjunct to the Outpost Nursing program, and since 1962 the University of
Alberta has received recognition for certification from the Central Midwives
Board of England and Scotland for nurses who undertake its “Advanced
Practical Obstetrics” course. 70
In Ontario, no legislation exists for the practice of midwifery as a dis-
tinct profession. No person may practice medicine unless licensed to do so
by the Council of the College of Physicians and Surgeons of Ontario (Health
Disciplines Act, R.S.O. 1980 c. 196, section 52), and section 45(l)(f) of the
Health Disciplines Act states that the “practice of medicine includes the
practice of surgery and obstetrics.” Because the Council governs the re-
quirements for the issuing of licenses, it could issue licenses for the practice
of midwifery to those not holding a medical degree, but it has not done
so. 71 Section 67(1) of the Act makes it an offence to engage in the practice
of medicine if not licensed, and section 67(2) makes explicit reference to
the practice of midwifery:
[A]ny person not licensed under this Part who takes or uses any name, title,
addition or description implying … that he is recognized by law or otherwise
as a … licentiate in … midwifery, or who assumes, uses or employs … any affix
or prefix indicative of such titles or qualifications as an occupational desig-
nation relating to the treatment of human ailments or physical defects or ad-
vertises or holds himself out as such, is guilty of an offence….
The section thus precludes an individual from professing that she or
he is qualified to practice midwifery. The phrase “by law or otherwise” would
probably preclude practice even solely on the basis of having had experience,
regardless of any assertion of legal or professional qualifications. Although
it might be argued that assistance in childbirth does not fall within the
category of the “treatment of human ailments or physical defects, ‘ 72 this
69J. Hurlburt, “Midwifery in Canada: A Capsule History” (1981) 77 The Canadian Nurse
2:30 at 2:30.
70Ibid.
71Community Task Force, supra, note 8 at 18.
72An argument that the “practice of medicine” does not include midwifery was successfully
made on this basis in Banti v. State, 289 S.W.2d 244 (1956). In Bowland v. Municipal Court,
18 C 3d 479, 556 P.2d 1081, 134 Cal. 630 (1976), the court came to the opposite conclusion,
holding that midwifery was included because pregnancy is a “physical condition” within the
meaning of the California statutory definition of “practice of medicine”. Of greater relevance
in Ontario, since “practice of medicine” is left largely undefined by the Health Disciplines Act,
is Commonwealth v. Porn, 82 N.E. 31 at 31, 196 Mass. 326 (1907), where it was held in the
absence of statutory definition that “the practice of medicine does not appertain exclusively
to disease, and obstetrics as a matter of common knowledge has long been treated as a highly
important branch of the science of medicine.” This view is supportable in Ontario by the
reference to midwifery in s. 67(2) of the Health Disciplines Act, as well as by the fact that
“practice of medicine” is defined to include obstetrics, in s. 45(1)(f).
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[Vol. 33
proscription is disjunctive from the prior proscription against holding one-
self out as a practitioner of midwifery and thus is a separate basis of liability.
Under the Health Disciplines Act, there exist only two exceptions to
the prohibition in section 52 against practicing medicine if unlicensed, and
these are set out in subsection (2):
For the purposes of subsection (1),
(a) rendering first aid or temporary assistance in an emergency without fee;
or
(b) the administration of household remedies by members of the patient’s
household,
shall be deemed not to be engaging in the practice of medicine.
Neither exception is of much assistance to an individual desirous of
practicing midwifery, since the emergency requirement of the first would
not contemplate the ongoing care involved in the practice of midwifery,73
and it further precludes the charging of a fee. Although midwifery might be
determined to fall within the “household remedies” definition of the second
exception,74 delivery of such care is restricted to members of the household.
It thus seems clear that, contrary to the view that midwifery in Ontario is
“neither legal nor illegal,”’75 a midwife could conceivably be prosecuted for
the mere practice of her profession. However, this has apparently not yet
occurred, and instead, midwifery practice has received a certain level of
tolerance by the medical profession and acceptance by the community.
B. Criminal Liability
Aside from being subject to penalty under the Health Disciplines Act
for practicing midwifery in Ontario, liability to criminal conviction is also
possible for both the individual practicing midwifery and the individual
bearing the child, in certain circumstances. Of greatest relevance is the case
of R. v. Marsh76 which held that a birth attendant has a duty toward a foetus
73Similar emergency exemptions in American statutes have been interpreted to be inap-
plicable to planned home births; Bowlandv. Municipal Court, supra, note 72. See also Caldwell,
supra, note 35 at 31.
74A similar exception in the California Business and Professional Code, 2144, allowing for
“the domestic administration of family remedies” was held not to encompass lay midwifery,
in Bowland v. Municipal Court, supra, note 72 at 1087.
75See e.g., L. Hossie “The midwives’ battle for self-rule” The [Toronto] Globe and Mail (12
76(1979), 2 C.C.C. (3d) 1, 31 C.R. (3d) 363 (B.C. Co. Ct). Of peripheral relevance are sections
216 and 590 (infanticide), 221 (killing unborn child in act of birth) and 226 (neglect to obtain
assistance in childbirth) of the Criminal Code, R.S.C. 1970, c. C-36 [hereinafter Criminal
Code]. Without going into detail, however, all three offences require some form of intent, bad
motive or condition where the mother’s “mind is … disturbed” (s. 216), and thus have no
particular relevance to the practice of midwifery per se.
November 1985) A7.
1987]
MIDWIFERY IN ONTARIO
for the purposes of section 203 of the Criminal Code, causing death to a
“person” by criminal negligence. The Court held that a foetus was a “per-
son” within the meaning of this section, notwithstanding section 206 of the
Criminal Code which states that a child becomes a “human being” for the
purposes of the Act “when it has proceeded, in a living state, from the body
of its mother … .” The court stated at page 9:
For the purposes of the issue before the court it is not necessary to define the
precise moment at which an embryo becomes a person. It is sufficient to say
that the living foetus within the body of its mother and apparently a normal,
vital and vigorous foetus, developed as a full-term child and in the very process
of being born, was a person, within the meaning of s. 203 of the Criminal
Code….
In making this statement, the court left open the possibility that a duty
to the foetus as a “person” for the purposes of section 203 may in fact
extend further back than the moment of birth. Presumably, the Court’s
reasoning could equally apply to section 204 of the Criminal Code, which
proscribes causing bodily harm by criminal negligence in comparable word-
ing. It should be noted that these sections are of general application and
thus, of course, apply equally to all persons, including licensed physicians,
who administer health care to a person during pregnancy or childbirth. They
have particular relevance to midwifery, however, due to its present ambig-
uous legal and professional status. Section 198 of the Code requires a “duty
to have and use reasonable knowledge, skill and care” of those undertaking
to administer “medical treatment.”’77 Since the acceptable standard of care
is likely to be that established by expert witnesses from the medical profes-
sion, it is much more probable that a midwife would be held to have failed
to meet the level of care required by the Criminal Code.
These sections could also be interpreted to apply to mothers who choose
other than standard hospital procedures for childbirth care, if such a choice
is held to amount to “criminal negligence” 78 in the circumstances. However,
Annas cites a small body of common law cases supporting the proposition
that a mother’s duty towards her child for the purposes of the criminal law
does not begin until after birth.79
77If midwifery is defined as “medical treatment”, it is likely that midwives would be held
to the standard of care of the medical profession at present, but possibly to the standards of
the profession of midwifery in the event that legislation regulating such a profession were
passed. Similarly to s. 198, s. 45 absolves from criminal responsibility those undertaking “sur-
gical operations” if the operation is performed with “reasonable care and skill” and its per-
formance is reasonable in the circumstances.
78S. 202 defines “criminal negligence” as showing “wanton or reckless disregard for the lives
or safety of other persons”.
79Annas, supra, note 10.
110
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It is also possible that the reasoning of the court in R. v. Marsh might
be applied to other sections of the Code which define offences against “per-
sons”. Of particular relevance is section 197 of the Criminal Code which
states, in part, that:
(1) Every one is under legal duty
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, insanity or other cause,
to withdraw himself from that charge, and
(ii) is unable to provide himself with the necessaries of life.
(2) Every one commits an offence who, being under a legal duty within the
meaning of subsection (1), fails without lawful excuse, the proof of which lies
on him, to perform that duty, if
(b) with respect to a duty imposed by paragraph (l)(c), the failure to perform
the duty endangers the life of the person to whom the duty is owed or causes
or is likely to cause the health of that person to be injured permanently.
Were a foetus at term to be defined as a “person” within the meaning
of this section in accordance with R. v. Marsh, it seems likely that it would
also be defined to be “under the charge” of at least its mother and possibly
also of a birth attendant, and a foetus is clearly “unable to provide himself
with the necessaries of life.” To this extent it is possible that both a mother
and a birth attendant would be under a legal duty for the purposes of this
section. “Necessaries of life” can include medical care80 and, if in the context
of childbirth this is interpreted as referring to standard hospital medical
procedures, a midwife might be criminally responsible, for example, for
failure to use forceps, or a mother on a more general basis for failing to
obtain “medical care” during pregnancy and childbirth, to the extent that
she chooses midwifery services instead. The section has a broader range of
liability than that discussed in R. v. Marsh (criminal negligence causing
death), since it requires only failure to perform a duty that is “likely to
cause the health of that person to be endangered permanently” [emphasis
added].
Because midwifery involves an ethic of non-intervention, an individ-
ual’s choice of this method generally includes an election to forego several
types of “medical treatment”, and this is complicated at the moment of
childbirth by the presence of the foetus.8 1 A mother’s election to forego a
Caesarean section, for example, may be limited in the criminal law by the
extent to which such a procedure is necessary to preserve the life or health
80R. v. Brooks (1902), 9 B.C.R. 13, 5 C.C.C. 372 (S.C.).
81Eekelaar & Dingwall, supra, note 8.
1987]
MIDWIFERY IN ONTARIO
of the foetus. Where the life of the foetus is in danger, the mother’s refusal
of a procedure may be analogous to impeding its rescue by the midwife or
physician. Section 241 of the Criminal Code provides that:
Every one who
(b) without reasonable cause prevents or impedes, or attempts to prevent or
impede any person who is attempting to save the life of another person,
is guilty of an indictable offence….
However, application of this section again depends on whether a foetus
is defined as a “person”. As well, it may be that the mother’s interest in
protecting her own health and safety is “reasonable cause” for refusing such
a procedure pursuant to the section. In this respect it is interesting to note
that section 221 defining the indictable offence of killing an unborn child
in the act of birth provides an exemption in the interests of the mother:
(2) This section does not apply to a person who, by means that in good faith,
he considers necessary to preserve the life of the mother of a child, causes the
death of such child.
This indicates that the mother’s interest may in some circumstances prevail
over those of the foetus for the purposes of the criminal law.82
A conflict may exist between a birth attendant’s respective duties under
the criminal law towards mother and foetus. If the birth attendant insisted
on a procedure for the benefit of the foetus, she might be liable to the mother
for assault (sections 244 to 245.3). Although section 45 absolves from crim-
inal responsibility those performing reasonable and skilled operations, its
effect is limited to operations performed on a person “for the benefit of that
person” and thus would be of no avail where the operation is performed
on an individual for the benefit of her foetus.
C. Civil Rights and Liabilities
The position of the midwife in tort law is complicated by several factors.
The first of these is the ambiguous legal status of midwifery. Under the
present legal regime, in which midwifery is essentially the unlawful practice
of medicine, it is possible that the practice of midwifery would per se con-
stitute a failure to discharge the duty of care. 83
82This perspective is also evident elsewhere. K.M. Weiler & K. Catton, “The Unborn Child
in Canadian Law” (1976) 14 Osgoode Hall L.J. 643, observe at 647 that in the Criminal Code’s
“abortion provisions a preference is expressed for the extant life of the mother over the potential
life of the unborn. When the mother’s right to health or life is threatened by the continued life
of the fetus, she has the right to defend herself by having its existence terminated.”
83See I.T. Gordon, “The Birth Controllers: Limitations on Out-of-Hospital Births” (1982)
27:1 J. of Nurse-Midwifery 34.
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Both midwife and mother are subject to liability for negligence, the
mother to her foetus, and the midwife to both mother and foetus, for damage
caused prior to or during delivery.84 It seems likely that in negligence cases
midwives at present, if not held to be negligent by the mere practice of their
profession, would at least be held to the standards of care set by the medical
profession for pregnancy and childbirth care.
Accordingly, liability could result if it is shown that damage could have
been prevented by the use of standard obstetric technology or procedure,
since it is common practice for courts to exhibit deference to the opinion
of the medical profession. Courts have often stated that they will not “sec-
ond-guess” medical judgment, even in cases where the particular judgment
is disputed on medical standards:
[T]he dispute within the medical profession … is not one that should be resolved
by substituting our judgement for the professional judgement of the staff of
defendant hospital.8 5
Devries aptly describes the judicial deference to professional judgment
of physicians as “medical hegemony”. 86 His lucid sociological analysis of
this phenomenon is worth quoting at length:
[A]reas ruled by the law must be “justiciable” –
that is, the arrangements of
nonlegal institutions must be understood in legal terms in order for laws to
regulate them …. Many nonlegal institutions, including medicine, have de-
veloped highly specialized bodies of knowledge that prevent penetration by
legal institutions without some technical guidance …. [T]he counsel of medical
experts helps determine the outcome of legal decisions related to health care.
(This … is of particular import for midwifery where obstetricians and other
physicians have enormous de facto power over legislation and adjudication
concerning midwives….)
1
41t is possible that a midwife could avoid liability to the mother by raising the defence of
voluntary assumption of risk, to the extent that the mother elected to use her services, if the
risks were disclosed. However, in the event of damage to the foetus, an argument of assumption
of risk is unlikely to succeed. The defence of assumption of risk has been used to argue against
maternal liability to the foetus on the basis that “a person bestowing a benefit –
in this case
the mother bringing the child into the world –
should not be held to the same high standard
of care to the child-beneficiary as would a stranger.” E.W. Keyserlingk, “The Unborn Child’s
Right to Prenatal Care (Part II)” 3 H.L.C. 31 at 37, describing an argument in “The Impact
of Medical Knowledge on the Law Relating to Prenatal Injuries” (1962) 110 U. of Penn. L.
Rev. 554. This view would likely not hold sway in Canadian law, which requires full disclosure
of the risks and a clear voluntary acceptance of them, requirements which could not, of course,
be satisfied in the case of a foetus.
35Fitzgerald v. Porter Memorial Hospital, supra, note 58 at 721 (Per Stevens J.).
8 6Devries, supra, note 21 at 149.
1987]
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[L]egal officials who make medical decisions let themselves be influenced by
culturally dominant medical views. In … modern societies, allopathy has been
accepted as the orthodox mode of medical treatment. The elevation of allopathy
–
reflecting a basic trust in the progress of science and the benefits of tech-
nology –
is the result of political and economic competition among various
styles of medicine that occurred earlier in this century…. [C]onsequently, legal
decisions in the legislatures and courts exhibit a bias toward allopathic
practice. 87
The likelihood that courts will defer to medical opinion is exacerbated
in the case of midwifery by open policy statements against midwifery or
practices associated with it made by professional medical organizations,
which serve to reinforce the view that the practice of midwifery is per se
negligent. Both the College of Physicians and Surgeons of Ontario and the
College of Nurses of Ontario have made such policy statements, the former
threatening its members with professional misconduct if they assist or col-
laborate with midwives and, stating that “it does not consider home births
to be safe or in the patient’s best interest,” 88 and the latter stating that home
birth should be “limited to those situations where adequate physician in-
volvement is ensured. ‘ 89 The American College of Obstetricians and Gyne-
cologists (ACOG) has gone even further by stating that “home delivery is
maternal trauma and child abuse!” 90 The fact that courts are likely to accept
such medical opinion over the opinion of midwives is even more discon-
certing when it becomes clear that these opinions may be particularly un-
justified. According to Gordon,
[i]n a dramatically biased research undertaking. ACOG has decided to collect
“genuine scientific data … which will ultimately convince those who are willing
to listen.” They have established a registry to receive reports of preventable
maternal deaths associated with home delivery because the existing data in-
dicate a lower than expected maternal mortality rate for women giving birth
at home. An ACOG news release stating that “79 babies died last year in
California associated with home delivery that would not have died in hospitals”
does little to enhance their credibility as unbiased researchers. The California
State Department of Health Statistics cited by ACOG did not differentiate
between planned and unplanned out-of-hospital births, so that at least 67% of
the out-of-hospital stillbirths represented precipitous, unplanned and/or pre-
mature deliveries…. Thus despite the claims of ACOG to the contrary. the
87Ibid. at 11-12.
8tCollege of Physicians and Surgeons of Ontario. “Nurse-Midwives”. College Notices (Jan-
uary 1982).
89College of Nurses of Ontario. Guidelines for Registered Nurses Providing Care to Individuals
and Families Seeking Alternatives to Childbirth in a Hospital Setting (November 1983) at I.
9oW. Pearse, (ACOG Executive Director). “Home Birth Crisis”. ACOG Newsletter (1977).
as quoted in Gordon. supra. note 83 at 35.
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California data cannot be used to evaluate the safety of planned births in a
non-hospital setting.91
As we have seen, it is not at all clear that medical standards should
invariably be the benchmark for assessing whether negligence has occurred.
The evidence discussed earlier shows that midwifery care and home birth
are at least as safe for normal birth as medical care. This observation em-
phasizes that courts should not necessarily apply a medical standard of care
post facto on the presumption that it is a superior form of care. Rather,
midwifery must be recognized as an adequate and acceptable form of care,
both legally and medically, such that questions of negligence in a midwife-
assisted birth can be analyzed with reference to standards of that profession
on its own terms. To facilitate this form of analysis on the part of the courts,
midwifery should be established as a legally regulated profession. With a
statutory scheme in place setting norms of practice for midwifery, a reference
point for evaluating negligence in the case of a midwife would be established,
and a mother would not be negligent merely for selecting this form of health
care. Professional regulation would also serve to lend credibility to the phi-
losophy of midwifery and allow it to acquire the de jure legitimacy it de-
serves, based on its defacto legitimacy established by the statistical evidence.
However, establishing midwifery as a legally regulated profession does
not fully secure the status of midwives in tort law. Several other issues
regarding the duties of midwives in the context of pregnancy and childbirth
generally, and in the context of a rapidly developing technology in the area
of obstetrics specifically, serve to obscure the legal position of both mothers
and their midwives. It is useful as an introductory note to outline briefly
these issues.
One complication is that unlike the paradigm two-party tortious event,
there are necessarily three parties involved in the context of pregnancy and
childbirth: midwife, mother and foetus. The result of this triad relationship
is a conundrum of rights and duties that is not easily resolved for the
purposes of tort law. The fact that mother and foetus constitute a single
physical entity can be a source of conflict if a midwife is burdened with a
separate legal duty to each. Another focus of conflict is the mother. Her
duty of care towards the foetus may conflict with her rights of autonomy
and interests in her own health, which may in turn conflict with either of
the duties of the midwife towards the mother or the foetus. These com-
plexities are further exacerbated by the expansion of medical technology in
the area of obstetrics. As birth technology in the area of prenatal diagnosis
and therapy advances at an increasingly rapid pace, the law is responding
by expanding the duties of both mothers and their birth attendants towards
91Gordon, supra, note 83 at 37.
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MIDWIFERY IN ONTARIO
foetuses. Expanded duties indicate corresponding rights, and there is a rap-
idly growing body of literature on the issue of according certain legal rights
to foetuses, particularly with the development of such new causes of action
as “wrongful life” and “wrongful birth.”
The introduction of midwifery in this context acts as a countervailing
trend since its non-technological approach is an antithesis to this developing
body of law. The burgeoning trend to accord rights to foetuses that may
dictate greater technological intervention during pregnancy and birth on
behalf of the foetus would clash on a legal level with the proposed right of
midwives to practice according to their professional ethic, and the right of
the individual to select midwifery as a mode of health care. On a policy
level, if midwifery is to become a legally recognized and regulated profession,
the integrity of its philosophical approach to health care independent of the
medical ethic must be maintained. The approach of midwifery is an holistic
one, emphasizing a natural birth and de-emphasizing interventionist pro-
cedures. To this extent it must somehow be justified against the present
medical and legal trend to promote greater intervention in the pregnancy
and childbirth process, and thereby establish foetal rights.
As the law dealing with the rights and duties of various parties in
relation to pregnancy and childbirth is just beginning to develop, particularly
in Canada, many questions are still unsettled and much of the jurisprudence
is in a state of conflict and flux. However, a comprehensive review of the
law and the legal literature reveals the issues set out above.
In addition to the paradigm negligence cause of action which encom-
passes actions for prenatal or even preconception injury,92 the courts have
begun to recognise new causes of action in tort which create onerous duties
of care towards the mother and foetus prior to and during pregnancy and
childbirth. American courts have recognized a cause of action for “wrongful
birth,” an action by the parents for the birth of a child following faulty birth
control or sterilization due to negligence, or the birth of a naturally defective
child which might have been avoided by abortion if the duty to inform of
9 21n Grodin v. Grodin, 301 N.W.2d 869 at 870, 102 Mich App. 396 (1980) the court found
a mother liable for dental damage to her child caused by use of tetracycline during pregnancy
on the basis that the “mother would bear the same liability for injurious, negligent conduct
as would a third person”. See B.M. Knoppers “Modern Birth Technology and Human Rights”
(1985) 33 Am. J. Comp. L. I at 27. Renslow v. Mennonite Hospital 351 N.E.2d 870 at 874, 40
Ill. App. 3d 234 (1976), aff’d 367 N.E. 2d 1250, 67 Ill. 2d 348 (S.C. Ill., 1977) recognized a
preconception injury to the mother consequent to the child on the basis that “[t]here has been
no shred of showing that defendants could not reasonably have foreseen that the teenage girl
would later marry and bear a child and that the child would be injured as the result of the
improper blood transfusion.”
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[Vol. 33
certain risks had been fulfilled or adequate detection techniques used.93
These cases put a higher onus on birth attendants to use available techniques
to detect abnormalities, which is a push towards greater utilization of in-
terventionist technology. A few American courts have allowed a cause of
action for the companion tort of “wrongful life,” an action brought by the
defective child on his or her own behalf, again for negligently caused failure
to abort. The most notable of these is Curlender v. Bio-Science Laborato-
ries,94 which allowed the child damages for a defective life caused by in-
adequate testing and counselling for Tay-Sachs disease. This new body of
case law again tends to impose a duty on physicians and midwives to attempt
painstakingly to detect defects, indicating that prevailing state of detection
methods in the area of obstetrics should be used in order to discharge the
duty of care. To this extent, the use of midwifery techniques may be con-
sidered negligent. Furthermore, because in the case of wrongful life actions
the cause of action belongs to the child, the mother may also be subject to
a duty of care, forcing her to opt for more meticulous detection methods
than midwifery would afford.
However, Canadian law has not yet gone this far. When faced with
wrongful birth actions, Canadian courts have accepted that a cause of action
exists but have assessed only nominal damages for the parents, rejecting the
idea that a child could be anything less than an overall benefit to parents95
where an unwanted child resulted from a negligently performed sterilization
procedure, and even terming the very idea of such damages “grotesque”. 96
There has apparently been no case of a successful wrongful life action yet
in Canada. In Cataford v. Moreau,97 the cause of action was rejected on the
grounds that it was impossible to assess damages by comparing the situation
after birth with not having been born at all.
93See, e.g., Moores v. Lucas, 405 So.2d 1022 (Fla. Dist. Ct. App. 1981), a failure to diagnose
and/or warn of an inheritable disease; Phillips v. United States, 508 FSupp. 544 (D.S.C. 1981),
575 FSupp. 1309 (D.S.C. 1983), negligent genetic counselling on Down Syndrome; and Naccash
v. Burger, 223 Va. 556, 290 S.E.2d 825 (1982), erroneous labelling of blood in Tay-Sachs test,
as cited in Knoppers, supra, note 92 at 4, note 19. Again, viability serves as the limiting factor
in this cause of action. Wallace v. Wallace, 421 A.2d 134 (N.H. 1980) held that a pre-viable
foetus cannot be the subject of a wrongful death action, and Vaillancourt v. Medical Center
Hospital of Vermont Inc., No. 4-80 (Me. Nov. 5, 1980) that a viable foetus can be the subject
of such an action whether or not born alive. See Keyserlingk, supra, note 51 at 20.
94165 Cal. 477, 106 Cal. App. 3d 811 (1980). See also Harbeson v. Parke-Davis Inc, 656 P
2d 483, 98 Wash. 2d 460 (1983) and, in part, Turpin v. Sortini, 643 P2d 954, 31 Cal. 3d 220
(1982). The cause of action for wrongful life was rejected in England in McKay v. Essex Area
Health Authority [1982] 2 W.L.R. 890, [1982] 2 All E.R. 771 (C.A.).
–
95Cataford v. Moreau [1978] C.S. 933, 114 D.L.R. (3d) 585.
96Doiron v. Orr (1978), 86 D.L.R. (3d) 719 (Ont. H.C.). It should be cautioned that this
approach may have been a result of the fact that both cases involved the birth of healthy
children, and it is possible that the courts will react differently to the birth of a defective child.
97Supra, note 95.
1987]
MIDWIFERY IN ONTARIO
As previously noted, a child clearly has a cause of action for injuries
negligently sustained by it prior to birth, indeed perhaps prior to conception,
and this holds for Canada as well.98 This action would lie against both
mother and midwife or physician. As the Family Law Act provides:
65. No person shall be disentitled from bringing an action or other proceeding
against another for the reason only that they stand in the relationship of parent
and child.
66. No person shall be disentitled from recovering damages in respect of injuries
incurred for the reason only that the injuries were incurred before his birth.
[emphasis added]99
These provisions imply, by their use of the word “person”, that the
cause of action exists only for someone who has already been born. Indeed,
Canadian courts, consistent with a more conservative approach than Amer-
ican courts have taken, tend to emphasize that birth is a prerequisite to
legal rights in the area of prenatal and preconception torts. 0 0 For example,
although the right of action for prenatal torts was recognized as early as
1923 in Smith v. Fox,10 ‘ the court stipulated that the right to damages arose
once the precondition of live birth was satisfied.’ 0 2 Similarly, in Montreal
Tramways v. L~veill the court held that a right of action for prenatal injuries
existed if the foetus was “born alive and viable.”‘ 0 3
Although it is arguable as a matter of pragmatics alone that live birth
is necessary in order to bring an action in court on one’s own behalf, the
emphasis Canadian courts place on this requirement tends to preclude the
attachment of rights to a foetus prior to birth. Indeed, the courts, while
allowing the right of action after birth, have specifically refrained from de-
482, 40 D.L.R. (3d) 666 (C.A.).
98Duval v. Seguin [1972] 2 O.R. 686, 26 D.L.R. (3d) 418 (H.C.), aff’d [1974] 1 O.R. (2d)
99S.O. 1986, c. 4.
10OThis conservative approach may also explain the reluctance of Canadian courts, in contrast
to American courts, to accept the actions of wrongful life and wrongful birth.
101(1923) 3 D.L.R. 785 (Ont. H.C.).
102The court in Smith v. Fox, ibid., also rejected a claim by the father as “next friend” of
the foetus before its birth which underscores the reluctance to accord rights to the unborn. On
the issue of prenatal injury, see Knoppers, supra, note 92 at 7, and Weiler & Caton, supra,
note 82 at 651ff.
103[1933] S.C.R. 456 at 464, [1933] 4 D.L.R. 337. This implies the further requirement in
civil law that the foetus be viable after birth (i.e. birth and immediate death would preclude
-the cause of action).
McGILL LAW JOURNAL
[Vol. 33
ciding that a foetus has juridical status. 0 4 Moreover, a clear statement on
this issue was made in Borowski v. A.G. Canada,0 5 which decided that a
foetus is not protected by the Charter on the basis that
it is the prerogative of Parliament, and not the Courts, to enact whatever
legislation may be considered appropriate to extend to the unborn any or all
legal rights possessed by living persons. Because there is no existing basis in
law which justifies a conclusion that foetuses are legal persons and therefore
within the scope of the term “everyone” utilized in the Charter, the claim of
the Plaintiff must be dismissed. 0 6
Thus, while the door has been left open in the U.S. to accord legal
personhood to the foetus, it is arguable that in Canada at least, a foetus
generally has no protection under the law except upon birth. This would
mean that a mother’s selection of midwifery services during pregnancy rather
than obstetrical services could not be interfered with on the purported
grounds of protecting the interests of the foetus.
Nevertheless, the recent U.S. case law on wrongful birth and life, as
well as that involving the more accepted torts of prenatal and preconception
negligence, has given rise to a vehement discussion on foetal rights in both
the Canadian and American literature. The argument that a foetus should
have certain legally recognized rights has led to the contention that the state
should not only establish a right of action in tort post facto, but should
intervene during pregnancy and childbirth to protect foetal rights. The Fam-
ily and Children’s Law Commission of British Columbia has stated, for
example, that
once a woman has decided to bear the future infant, the laws of the province
should emphasize individual responsibility to provide the infant [sic, foetus] 07
’14For example, Duval v. Seguin, supra, note 98. Weiler & Catton, supra, note 82, observe
at 654 that the court in Duval v. Seguin was able to find a cause of action arising only upon
birth by relying on the doctrine of Donoghue v. Stevenson [1932] A.C. 562 (H.L.) that damages
(manifested after birth) need not coincide in time with the tortious act (before birth). The fact
that courts have recognized this cause of action does not necessarily imply that the foetus has
a legal personality since, as Duval v. Seguin points out, the damages compensated are those
suffered during the injured life since birth. Furthermore, the wrong is not necessarily one
committed against the foetus since it may, as in the case of preconception torts, be inflicted
before the foetus even comes into existence.
105(1983) 4 D.L.R. (4th) 112 (Sask. Q.B.), aff’d (1987) 56 Sask. R. 129 (C.A.).
1061bid. at 131. On the other hand, recall that R. v. Marsh, discussed supra, note 76, decided
that at least for the purposes of the criminal law, a foetus may be a “person in some instances.”
‘0 71t is technically incorrect to refer to a foetus as an “infant” or even as an unborn “child”
as several writers are wont to do, since it does not accord with the dictionary definition of
these words and tends to presuppose the personhood and hence legal status of the foetus, which
is at best unclear in law. As W.W. Watters et al. have noted, the “medical term fetus is more
dispassionate and hence more compatible with a legalistic form of reference. If we use the
word fetus, people are free to attach whatever value to that word they choose…. We do not
call a seed an ungerminated flower nor an acorn an unsprouted oak tree; why should we call
a fetus an ‘unborn child’?”. “Response to Edward W. Keyserlingk’s Article: The Unborn Child’s
Right to Prenatal Care” (1983) 4 Health L. in Can. 32 at 34.
1987]
MIDWIFERY IN ONTARIO
with the kind of pre-natal care that will prevent unnecessary jeopardy to the
child …. [I]f a woman requires frequent pre-natal visits for medical surveillance
in order to detect and prevent complications that would lead to premature
birth or some other predisposition to disease in the future child, it seems
irresponsible for her to allow other considerations to take precedence over such
a requirement for health care. 108
The Commission accordingly recommended dispositions be made to
place the mother under a supervision order in such situations. The prop-
osition that courts should intervene during pregnancy to decide what is in
the best interest of the foetus is often based on an analogy to child protection.
This analogy was accepted in the United States, where several courts have
held that a foetus can be a child for the purposes of child neglect statutes. 09
In Canada a court has appointed a guardian ad litem for an 18 week
foetus under a child protection statute while the father sought an injunction
to prevent its abortion.” 0 Canadian courts have also awarded custody of
foetuses to provincial Child Welfare Agencies in two recent decisions. In
the first,”‘ the Ontario Provincial Court awarded three months temporary
custody, ruling that there were grounds to believe that there was a substantial
risk to the foetus’ health or safety under section 47(3) of the Child and
Family Services Act, 1984.112 The court found that the homeless mother
refused to seek medical assistance necessary for the delivery of the child.
More recently, a B.C. provincial court judge ruled after the fact that child
care authorities were entitled to apprehend custody of a foetus in order to
enable a doctor to perform a caesarean section the mother had refused.’ ‘3
The court also awarded permanent custody of the child, which had by the
08British Columbia, Royal Commission on Family and Children’s Law, Report K The Pro-
tection of Children (Vancouver, March 1975) at 65, as cited in Weiler & Catton, supra, note
82 at 649.
’09See, e.g., Re Baby X, 97 Mich.App. 11, 293 N.W.2d 736 (1980), Hoener v. Bertinato, 171
A.2d 140 (N.S. 1961). Indeed, Keyserlingk notes that one such case (People v. Yates, 298 R
961 (1931)) involved a child support section of a statute that explicitly deemed an “unborn
child” to be a person for the purposes of that section. See Keyserlingk, supra, note 51 at 18ff;
and M. W. Shaw, “Conditional Prospective Rights of the Fetus” (1984) 5 J. Legal Med. 63 at
89.
1 0Re Sunins and H (1979), 106 D.L.R. (3d) 435 (N.S. Fain. Ct).
I’Re Children’s Aid Society of City of Belleville, Hastings County and the Unborn Child of
L.T and G.K. (1987), 59 O.R. (2d) 204, 7 R.EL. (3d) 191 (Prov. Ct).
II2S.O. 1984, c. 55.
’13Re Baby Boy R. (3 September 1987), Vancouver 876125 (B.C. Prov. Ct). The court also
awarded permanent custody of the child, which had by the time of the hearing been born, to
child care authorities after finding that the mother was unable to care adequately for the child.
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[Vol. 33
time of the hearing been born, to child care authorities after finding that
the mother was unable to care adequately for the child.” 14
It is possible under this approach that the use of midwifery services
could be precluded entirely. As Shaw observes:
Although there has been a movement for the use of midwives and home de-
liveries, it is possible that a physician might see a strong medical indication
for a hospital delivery if the risks of lack of medical attendance and emergency
equipment were high. If a mother refused such assistance, she could be liable
for fetal neglect.15
On the other hand, it is arguable that child protection statutes are an
inappropriate tool in the context of midwifery, since they are intended to
apply only in severe cases of neglect and since they are applied stringently
by the courts. As Keyserlingk observed, with respect to the former Ontario
Child Welfare Act (now Part III of the Child and Family Services Act, 1984):
It cannot bring into play any degree of child protection only because someone
establishes that someone else than the parents or a parent could do a better
job or the best job for a child, that is, “The criteria underlying the definitions
provided for in s. 20 should not be based on what is in the best interests of
the child but rather what is necessary to raise the child’s standard of care back
to an acceptable minimum level”.
[I]t is always possible for parents, physicians and others to do a better job for
the unborn. Will forgetting a single prenatal checkup, taking a cigarette too
many times one day … be potential occasions for … a Family Court to decide
that the unborn child is in need of protection … ? Of course not.”‘” 6
If this interpretation is correct, it seems clear as a general proposition that
midwifery services constitute at least an “acceptable minimum level” of
care for the foetus and as such could not be subject to scrutiny under child
welfare statutes.
Even without the aid of such statutes, the literature and some cases
have proceeded solely on the basis of a foetal rights argument and the state
interest in the unborn. But a continued progression of increased maternal
duties and foetal rights corresponding to advances in medical science, be-
“14Two other Canadian cases, Chapman v. Canadian NationalRailway Co. (1943), 52 O.W.N.
47, aff’d 52 O.W.N. at 297 (C.A.) and Gidding v. Canadian Northern Railway Co. [1920] 2
W.W.R. 849 (Sask. C.A.), found the foetus to be the subject of compensation legislation and,
while not directly on point, leave open the avenue of treating the foetus as a person for some
purposes in private law. See Weiler & Catton, supra, note 82 at 650.
“5Shaw, supra, note 109 at 89.
” 6Keyserlingk, supra, note 84 at 32, quoting J. Wilson, Children and the Law (Toronto:
Butterworths, 1978) at 49. See also Re Brown (1975), 9 O.R. (2d) 185, 21 R.EL. 315 (Co. Ct)
and B.M. Dickens, “Legal Responses to Child Abuse” (1979) 12 Fam. L.Q. I at 24.
1987]
MIDWIFERY IN ONTARIO
yond that presently established by the case law, would lead to what at least
one group of writers has termed an “Orwellian nightmare.”1 7 For example,
Robertson argues that
far reaching intrusions on the mother’s body and freedom of action for the
benefit of the unborn child may legitimately follow [from the case law]. Women,
for example, might then be forced to deliver by cesarean section. They may
also be prohibited from using alcohol or other substances harmful to the fetus
during pregnancy, or be kept from the workplace because of toxic effects on
the fetus. They could be ordered to take drugs such as insulin for diabetes,
medications for fetal deficiencies, or intrauterine blood transfusions for Rh
factor. Pregnant anorexic teenagers could be force-fed. Prenatal screening and
diagnosis procedures, from amniocentesis to sonography or even fetoscopy,
could be made mandatory. And, in utero surgery for the fetus to shunt cere-
broventricular fluids from the brain to relieve hydrocephalus, or to relieve the
urethral obstruction of bilateral hydronephrosis could also be ordered. Indeed,
even extra-uterine fetal surgery, if it becomes an established procedure, could
be ordered, if the risks to the mother were small and it were a last resort to
save the life or prevent severe disability in a viable fetus.”18
Keyserlingk further cites as a cause of defects the mother’s age. 1 9 If,
as he and others suggest, duties should be imposed on mothers according
to risk factors as they become known, individuals might be denied the right
to procreate 20 during certain risky age ranges, if it is deemed negligent to
do so.
These suggestions are not entirely far-fetched. Several courts have or-
dered mothers to submit to medical procedures during pregnancy that they
had chosen not to undergo, in the interest of the foetus. In Jefferson v.
Griffin Spalding County Hospital Authority’2’ an individual near term who
refused surgery on religious grounds was ordered to undergo a sonogram
and, if “considered necessary by the attending physician to sustain the life
of the child,”‘ 22 a caesarean section. The court held that the state’s interest
117Watters et al., supra, note 107 at 32.
“8J.A. Robertson, “The Right to Procreate and in Utero Fetal Therapy” (1982) 3 J. Legal
Med. 333 at 357-59.
“9Keyserlingk, supra, note 51 at 12.
120This observation is important since it indicates that imposing such duties on persons could
bring us full circle to direct conflict with the right to procreate at all, which in the U.S. is a
legally recognized right, established as an element of the right to privacy as early as Griswold
v. Connelicut, 381 U.S. 479 (1965) and developed into the right to reproductive privacy in
Eisenstadt v. Baird, 405 U.S. 438 (1972) and Roe v. Wade, 410 U.S. 113 (1973).
121274 S.E.2d 457, 247 Ga. 86 (1981) [hereinafter Jefferson].
‘221bid at 460. 331 E2d 1010, certiorari denied. See also Jones v. President of Georgetown
College, Inc. 377 U.S. 978 (1964) where a blood transfusion was ordered. Another case, from
Colorado, where the ordering of a caesarean section is discussed by W.A. Bowes & B. Selgestag,
“Fetal versus Maternal Rights: Medical and Legal Perspectives” (1981) 58 Obstet. & Gynecol.
209.
McGILL LAW JOURNAL
[Vol. 33
in the foetus, which it described as a “child,” and “a human being fully
capable of sustaining lifeindependent of the mother,”‘ 23 overrode the in-
terests of the mother. Similarly, in Raleigh Fitkin-Paul Morgan Memorial
Hospital v. Anderson, the court ordered an individual seven months preg-
nant to undergo a blood transfusion, again if considered “necessary in the
opinion of the physician in charge” 124 because “the unborn child is entitled
to the law’s protection.” 125 Indeed in one case, a schizophrenic, seven
months pregnant, was civilly committed in the purported interest of the
protection of her foetus.126
It can be seen that if the case law continues to develop to the point
suggested by the literature, the individual’s autonomy would be severely
limited. More specifically, her right to select the particular mode of health
care she deems appropriate for her pregnancy and parturition would become
heavily restricted. This has significant ramifications for the practice of mid-
wifery in two ways. First, because midwifery is presently considered an
“alternative” form of health care, particularly as it is not legally recognized
in Ontario, it could, in view of the case law, be considered a generally
inadequate form of health care, and thereby inhibit midwives’ ability to
practice. Second, the selection of midwifery involves a choice to forego the
majority of extraordinary or interventionist procedures, such as amniocen-
tesis or sonography during pregnancy, and use of foetal monitoring equip-
ment or Caesarean section during childbirth. The decision to opt out of
these procedures brings the right of the mother to do so into conflict with
her developing duty at law to utilize these procedures in the interest of the
foetus.
In the result, if midwifery is to survive as a feasible health care option,
midwives and mothers must be protected against legal intervention pre-
cluding the option of a “natural’ child birth. Further, if midwifery is to
become legally regulated, the ensuing legal and political sanction of this
’23Ibid. at 459. See also supra, note 109.
124201 A.2d 537 at 538, 42 N.J. 421 (1964) [hereinafter Raleigh Fitkin-Paul].
‘2-5Ibid. Interestingly, in both Jefferson and Raleigh Fitkin-Paul, it could be argued that despite
their emphasis on the personhood of the foetus, the courts’ concern also lay with the health
of the mother since doctors had testified that there was a significant risk of death to both foetus
and mother without the procedure in question. Indeed, the court in Raleigh Fitkin-Paul at 538
noted that “the welfare of the child and the mother are so intertwined and inseparable that it
would be impracticable to attempt to distinguish between them …. In both cases the moth-
er’s interest, at least in respect of health, paralleled rather than conflicted with that of the foetus
and hence, as Robertson notes with respect to the Jefferson case, “the court was able to avoid
ruling on whose health interests should prevail …. J.A. Robertson, “Procreative Liberty and
the Control of Conception, Pregnancy and Childbirth” (1983) 69 Va L. Rev. 405 at 446.
126P.H. Soloff, S. Jewell & L.H. Roth, “Civil Commitment and the Rights of the Unborn”
(1979) 136 Am. J. Psych. 114, cited in Robertson, ibid. at 446.
1987]
MIDWIFERY IN ONTARIO
profession must somehow be reconciled with the countervailing trends in
tort law.
Several arguments can be made to support the individual’s fight to use
midwifery services. The foetal rights argument, which restricts the mother’s
capacity to opt for such services by subordinating her right of self-
determination to rights imputed to the foetus, must first be rebutted.
Foetal rights arguments rest on two assumptions: first, that the mother
and the foetus are separate entities with separate collections of rights; and
second, the mother, by freely choosing to bear the child has, by implication,
consented to abandon the right of self-determination in so far as that right
is in conflict with the rights imputed to the foetus. Pregnancy is viewed as
a passive donation of one’s body with the necessary consequence that one
loses rights in favour of those of the foetus, rather than an active process
in which one retains autonomy and control. For example, Robertson argues
that
[t]o impose on the mother the duty to undergo surgical delivery where it is
necessary to save the child’s life or prevent it from being injured is not un-
reasonable when she has chosen to lend her body to bring the child into the
world.’ 27
Both elements of the foetal rights theory are fundamentally flawed.
The most serious error of foetal rights arguments is the failure to ac-
knowledge the position of the mother in relation to the foetus, a position
in which the foetus is necessarily subordinate. The foetus right up until birth
subsists only as a part of its mother’s body, and the development of so-
phisticated technology does not change this scenario. As long as the foetus
is a part of its mother’s body, the fact that it is capable of living outside it
is irrelevant when the mother’s body must be invaded to get access to the
foetus in order to protect its “rights.” To this extent, the foetus is subordinate
to the individual bearing it, and subject to her power of autonomy. As
Hubbard observes:
It makes no sense, biologically or socially, to pit fetal and maternal “rights”
against one another. Indeed, legal “rights” do not offer a proper framework for
assessing the situation of a pregnant woman and her fetus. As long as they are
connected, nothing can happen to one that does not affect the other…. It is
127Robertson, supra, note 125 at 456. Robertson’s argument results in a virtual loss of the
individual’s right of control over the course of her pregnancy and to protect her bodily integrity.
He decides that it follows from the available American case law that an individual should
have no right to refuse a procedure benefitting her foetus unless it presented an “undue risk
to her life or health” (at 445). Since by definition no doctor could rationally or responsibly
recommend a procedure entailing “undue risk” no case could arise in which the mother’s right
to bodily integrity could have any effect on the outcome.
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[Vol. 33
her right … precisely because the fetus is part of her body. To argue “rights”
of the fetus versus those of the mother ignores this organic unity and substitutes
a false dichotomy…. As long as a fetus is attached to the pregnant woman,
her body maintains its life and her body wall bars access to it.128
Hubbard concludes:
When physicians and judges become guardians of “fetal rights” mothers and
fetuses lose, because their respective “rights” cannot be sorted out any better
than their respective biology.129
The second assumption in a foetal rights argument is the theory that
the mother, by choosing to have the child, has by implication consented to
subordinate her rights to certain rights imputed to the child. Any theory
which infers consent to abandon civil rights and liberties as fundamental
as the freedom from intrusion on the body should be viewed with suspicion:
if consent were freely and consciously expressed, there would be no need
to infer it. Implied consent can be imposed acquiesence. Moreover, it is
possible to rebut implied consent by demonstrating that the person in ques-
tion was merely responding to an imperative.
Bearing children today is largely a matter of choice, but is also a function
of one’s biological existence and an event that is extremely significant to
both the individual and society. As a matter fundamental to the survival
of the human race and necessarily adjunct to a woman’s existence, it should
not under any circumstances result in a loss of rights or control over one’s
body. The significance of the choice and power to bring another human into
the world, both to society and to the individual, must be perceived in order
to avoid hastily establishing foetal rights at the expense of maternal rights.
But the foetal rights theory, which underlies the above legal develop-
ments does not allow for a logical or coherent sorting out of the respective
positions of mother and foetus for the purpose of protecting both inde-
pendently in any given medical situation, and the dejure subordination of
the foetus must follow from its de facto biologically subordinate position.
Hubbard’s analysis reveals not only that the individual should retain her
rights of autonomy during pregnancy and parturition, but also that she is
the only “patient” to whom the caregiver owes a duty.
Support for this position can be found in law, based on the right to
security of the person and to refuse medical treatment, and the right to
informed medical decision-making. There is some basis in the American
case law for a general right to refuse medical treatment. For example, the
court in In re Melideo130 upheld a Jehovah’s Witness’ refusal of a blood
28fHubbard, supra, note 3 at 215-16.
129Ibid. at 217.
130390 N.Y.S.2d 523 (1976).
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MIDWIFERY IN ONTARIO
transfusion and stated that “every human being of adult years and sound
mind has a right to determine what shall be done with his own body and
cannot be subjected to medical treatment without his consent.’ 3′ Indeed, a
few cases have allowed parents to refuse treatment for their child,’ 32 and
yet there are many more that deny parents this right both, as we have seen,
in the context of pregnancy and after birth. 133 As the law in this area is
unresolved, an argument on this basis alone would be likely inconclusive,
particularly since little or none of the case law is Canadian.
Nevertheless, an argument for a general right to refuse treatment is
reinforced by the right to bodily integrity or security of the person, partic-
ularly since this right is now constitutionally protected by section 7 of the
Charter.134 Although a right to bodily integrity has not been clearly artic-
ulated, it is not unknown to the law. Regan documents a historical judicial
aversion to imposing physical invasions or risks on persons in general and,
in the context of an argument for abortion rights, analogizes a woman’s
131lbid. at 52. See also Re Osborne, 294 A.2d 372 (1972) and Re Brooks’ Estate, 205 N.E.2d
435, 32 Il. 2d 338 (1965), blood transfusion refusals; Superintendent v. Saikewicz, 370 N.E.2d
417 (Mass., 1977), chemotherapy refusal; Re Guardianship of Richard Roe, II, 421 N.E.2d 40
(Mass., 1981), refusal of psychotropic drugs; and Youngberg v. Romeo, 102 S.Ct. 2452 (1982),
freedom from unreasonable bodily restraint protected, cited in McCormick, supra, note 7 at
692. Annas maintains that “[t]he general rule is that an adult patient who is both conscious
and mentally competent has the legal right to refuse to allow any medical or surgical procedure
to be performed on his body.” G. Annas, The Rights of Hospital Patients (New York: Sunrise
Books, 1975) at 79, as quoted in Forrest, supra, note 23 at 320.
132Re Phillip B., 156 Cal. Rptr. 48 (1979). In discussing the case of Re Hofbauer, 393 N.E.2d
1009 (Ct. App. 1979), Shatten & Chabon, “Decision-Making and the Right to Refuse Lifesaving
Treatment for Defective Newborns” (1982) 3 J. Leg. Med. 59 at 65 write that “[i]n refusing to
order chemotherapy against the parents’ wishes, the court of appeals stated that it would accord
great deference to the parents’ choice of physician and mode of medical therapy as long as
there was some support for their choice among medical authorities.” This would seem to
articulate a broader right to determine the form of treatment in contrast to the right to refuse
treatment, and thus would be some support for the individual’s right to opt for midwifery
services.
33For a thorough review of this case law see Shatten & Chabon, supra, note 132 at 65ff. In
Canada, Re D (1982) 30 R.EL. (2d) 277 (Alta Prov. Ct) held that the state’s right to protect
the child’s health prevailed over the parents’ freedom of religion as Jehovah’s Witnesses under
s. 2 of the Canadian Charter of Rights and Freedoms to refuse a blood transfusion to their
child.
134Although the rights in s. 7 were originally thought to afford only procedural (“due process”)
protection, the recent Supreme Court of Canada decision in Reference Re s. 94(2) of the Motor
Vehicles Act [ 1985] 2 S.C.R. 486 is some indication that s.7 rights may be treated as substantive.
Knoppers, supra, note 92 at 25, points out further that “[ilt could be argued that the right to
beget, irrespective of the means, would fall under the ‘liberty’ interest of article 7.”
1
McGILL LAW JOURNAL
[Vol. 33
position in pregnancy to that of a samaritan, 35 concluding that “imposing
invasion and hardship for the benefit of a third person is flatly inconsistent
with our nation’s fundamental traditions.”” 36 Indeed, forcing an individual
to undergo treatment for the benefit of her foetus is analogous to imposing
on her a duty of rescue, a notion which is clearly unaccepted in Anglo-
Canadian jurisprudence: the obligation is moral not legal. 137 Although sev-
eral writers have argued that the interest to be protected (here the health of
the foetus) should be weighed against the intrusiveness or degree of harm
involved in the invasive medical technique, 138 the law in some instances
has been loathe to impose even minor physical invasions. For example, in
paternity cases, where the significant interest of the child’s financial future
is at stake, courts have refused to order an individual to undergo a blood
test under the Children’ Law Reform Act, 139 instead requiring consent to
the procedure or holding that the “personal rights” of the individual
prevail.140
The right to determine the course of one’s health care is also supported
by the law of battery,”41 still extant in Canada in the medical context. 142
The mother’s capacity to bring an action in battery means that she always
has the right to refuse a medical treatment physically consequent upon her
body, which would include virtually any procedure for the benefit of the
foetus, since her consent is required before medical personnel can physically
touch her person. Shriner’s argument that the mother’s interests override
any foetal interests is essentially one based on the law of battery:
’35Regan argues that
the woman should not be compelled to subordinate her interests to those of the
fetus… . There is a conflict of interest between the woman and the fetus, and
someone is going to lose… . The point is that our law generally resolves this
conflict in favour of the potential samaritan. When a woman is pregnant, it is the
fetus that needs aid and the woman who is in a position to give it. If the conflict
between the woman and the fetus is to be resolved consistently with the resolutions
of the most closely analogous cases, the woman must prevail.
D.H. Regan, “Rewriting Roe v. Wade” (1979) 77 Mich. L. Rev. 1569 at 1610.
1361bid. at 1620.
137The position has been maintained as recently as 1971 in Horseley v. McLaren (1971),
[1972] S.C.R. 441, 22 D.L.R. (3d) 545.
138See Robertson, supra, note 118 at 335. Dickens notes for example that this weighing process
is evident in the case law regarding a parent’s right to determine medical treatment of her
child. B.M. Dickens, “The Modem Function and Limits of Parental Rights” (1981) 97 L.Q.
Rev. 462 at 484.
139S.O. 1977, c. 41.
140See Re H and H (1979), 25 O.R. (2d) 219, 9 R.EL. (2d) 216 (H.C.) and Re Rhan (1979),
27 O.R. (2d) 210 (Co. Ct). In Rhan the court held that in the circumstances the alleged father’s
right to privacy prevailed.
141Battery is the tort of intentional touching of one’s person in some manner without his or
142Reibl v. Hughes [1980] 2 S.C.R. 880, 14 D.L.R. (3d) 1, 33 N.R. 361.
her consent.
1987]
MIDWIFERY IN ONTARIO
A woman is plainly a person; a fetus’ status is not so clear. A woman’s un-
doubted personhood carries with it the ancient and well-nigh sacred right that
no one may touch her body without her consent. Hence, she may refuse surgery
for any reason, or for no reason at all. A fetus, however, for a variety of perfectly
natural reasons, may never even be born. 143
The law on informed consent in the medical context is also of great
relevance in determining the individual’s right to control her pregnancy and
parturition. Health care providers have a duty to inform their patients of
the nature and risks of medical procedure and to acquire their consent to
such procedures before performing them, or else they risk liability in neg-
ligence. 144 According to Dickens,
[t]he purpose is to serve and to maximize the patient’s autonomy. The patient
must be permitted to exercise autonomy, furthermore, regarding not only the
selected method of treatment, but particularly regarding the determined goal
of treatment. Goals relate to the patient’s preferred lifestyle and philosophy,
rather than to the more limited issue of selection between medical management
modalities …. 145
The result of the legal requirement of informed consent is that although
health care personnel may advise and recommend the course of health care,
the ultimate right to determine the appropriate health care, even in the
context of pregnancy, should lie with the individual. As Shriner writes,
[t]here is no acceptable alternative to requiring the woman’s consent to surgery,
and the obstetrician’s role must remain one of informing, counselling and
persuading in the difficult but fortunately infrequent, situation[s] …. 146
It is arguable that the requirement of informed consent or informed
choice, particuarly in view of its purpose according to Dickens, above,
means a mother should have the right to decide whatever is in her own best
interests (and those of her foetus), even if considered medically irrational. 147
Gynecol. 518 at 518, as cited in Hubbard, supra, note 3 at 211.
143T.L. Shriner, “Maternal versus Fetal Rights – A Clinical Dilemma” (1979) 53 Obstet. &
144Reibl v. Hughes, supra, note 142; Hopp v. Lepp [1980] 1 S.C.R. 192, 112 D.L.R. (3d) 67,
13 C.C.L.T 66; White v. Turner (1981), 31 O.R. (2d) 773, 120 D.L.R. (3d) 269, 15 C.C.L.T
81 (Ont. H.C.).
145B.M. Dickens, “The Modern Law on Informed Consent” (1982) 37 Mod. Med. Can. 706
at 706. Dickens rightly maintains that the term “informed consent” is inappropriate in implying
too limited a patient participation (his argument is based on Reibl v. Hughes, supra, note 142).
Instead a term such as “informed decision-making” would be more appropriate since it puts
the power to decide where it should reside, with the patient.
’46See Hubbard’s discussion of Shriner’s work in Hubbard, supra, note 3 at 211.
147As Dickens, supra, note 145 at 707 states, “Although the informing physician must initially
focus upon what is material to an exercise of prudent, reasonable decision-making, it must be
borne in mind that a patient’s autonomy permits exercise of choice in an unreasonable or
irrational way.
[A]utonomy serves an individual’s wishes, rather than the person’s interests.”
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[Vol. 33
However, the courts take a more objective than subjective approach to the
patient’s judgement, 48 and as we have seen this in general means a heavy
reliance on medical judgement.
In developing the law on informed choice in the context of pregnancy
and parturition, it is crucial that the courts recognise that questions regarding
the health care management of the mother and foetus, which deeply affect
fundamental legal and moral rights of the person, are more appropriately
decided by the mother than the medical profession. Unfortunately, courts
have a tendency to view medical testimony as empirically unquestionable
rather than as fallible opinion that serves only as evidence.’ 49 But differing
opinions within the medical profession as to whether a procedure is war-
ranted will be found in almost any case, and we have seen that the contem-
porary medical opinion as to the “benefits” of certain procedures is by no
means infallible and has not infrequently been proven wrong by the passage
o50 This fact alone serves as a legitimate basis for
of time and new data.
refusing those procedures one deems undesirable in the interests of one’s
own health. Even now a debate rages in the literature about the appropri-
ateness of novel prenatal procedures, while courts are simultaneously or-
dering those very procedures. One writer, after reviewing the courts’ avid
acceptance of new medical procedures, concludes that “this shift … is pro-
ceeding more rapidly and encompassing larger areas of recovery than can
be justified in light of the existing uncertainty and flux of medical
knowledge.”151
The limited number of cases on the issue already reveal the flaws in
medical judgement:
[Pihysicians’ predictions of harm to the foetus [are not] as reliable as judges
might tend to believe. In both the Georgia and Colorado cases [where courts
ordered the mother to undergo Caesarean section] … the doctors’ alarm proved
disproportionate. The Georgia woman had a successful vaginal delivery despite
her doctor’s insistence that it was a 99% impossibility … and the fetal monitor
‘ 481n the context of a negligence action, the court in Reibl v. Hughes, supra, note 142 held
that the question is one of what a reasonable, informed person in the patient’s circumstances
would have done, closing off the ability of a patient to act subjectively (i.e. objectively unrea-
sonably) if she is to later sustain an action in negligence. (In effect she has assumed the risks.)
The court also held that expert medical evidence is still pertinent to establish causation and
the nature and risks involved in the ailment and its various forms of treatment.
’49See supra, note 88 and accompanying text.
50See above Part I.
1
151″The impact of Medical Knowledge on the Law Relating to Prenatal Injuries” (1962) 110
U. of Penn. L. Rev. 554 at 598, as quoted in Keyserlingk, supra, note 84 at 34.
1987]
MIDWIFERY IN ONTARIO
in Colorado proved to have exaggerated the potential damage to the fetus from
the delayed delivery. 132
The acknowledgement that medicine is not a precise science provides
a good argument for putting in the hands of the individual the right to
decide her own destiny upon disclosure of the best information that the
medical profession can provide.
The law on informed consent and battery, particularly against the back-
drop of the Charter’s fundamental freedoms, including security of the per-
son, provide justification for a system in which the health care provider’s
duty is owed solely to the mother, to inform her of the health prospects of
her and her foetus, and in which the final decision is hers. This framework
allows for a more coherent form of analysis and avoids the dilemmas that
arise under a “foetal rights” analysis:
If [the physician] accedes to the mother’s wishes and the child is born dead or
defective, he faces potential civil or criminal liability for neglecting his duty
to the unborn child.
The physician has an independent duty to assure the well-being of the child,
a duty that the mother cannot waive. Yet if the physician insists on the cesarean
section out of a fear of legal liability or concern for the unborn child, he risks
a civil or criminal action brought by the mother for assault and battery…. 153
Instead, under the above proposal, the health care provider’s duty is
satisfied by proper disclosure and proper performance of procedures decided
upon by the mother, who could sue for negligent performance of either of
these duties. The foetus is adequately protected by a postnatal right of action
for prenatal injuries now present in our law for the negligence of either
mother or health care attendant, including that flowing from the attendant’s
negligent failure to advise the mother adequately.154 However, in view of
the above conclusion that maternal rights to refuse treatment prevail, it
would be necessary that this cause of action extend only to acts of mis-
1
52See Hubbard, supra, note 3 at 214, citing Berg, “Georgia Supreme Court Orders Caesarean
Section-Mother Nature Reverses on Appeal” (1981) 70 J. Med. Assn. of Ga. 451, and G.J.
Annas, “Forced Caesareans: The Most Unkindest Cut of All” (1982) 12:3 Hastings Ctr Rep.
16.
153Robertson, supra, note 125 at 456.
’54This proposed approach is similar though not identical to the present English approach
under the CongenitalDisabilities (Civil Liability)Act of 1976, in which the health care attendant
has a duty only to the mother and the postnatal child’s right of action lies only against the
attendant for breach of duty to the mother. For a broader analysis of this statute, see Eekelaar
& Dingwall, supra, note 8 at 264-70.
McGILL LAW JOURNAL
[Vol. 33
feasance and not to nonfeasance. 155 This protects maternal rights to auton-
omy and to use of midwifery services by recognizing as a general proposition
that there are valid reasons for choosing non-intervention as a course of
dealing for pregnancy. Allowing “nature to take its course” is a legitimate
choice based on the evidence reviewed above. As this decision is within the
rational range of choices, a mother cannot be forced to undertake any of
the available modes of medical intervention, all of which carry their own
risks to both mother and foetus, to avoid the risks inherent in pregnancy
itself.
Although the law has become fraught with anomalies and inconsist-
encies for situations in which a foetus is involved, the proposed approach
seems most consistent with our primary legal precepts and helps to clarify
the conflicting rights and duties involved. The child is protected after birth
for positive acts of negligence against it prior to birth, the duty of the health
care practitioner is clarified, and the autonomy of the individual to deter-
mine the course of her health care is preserved. Finally, a basis for the legal
and political legitimacy of the midwifery profession would thereby be
settled.
IV. Political Status in Ontario: Models of Regulation
In spite of, or perhaps because of, the fact that the present law in Ontario
effectively prohibits midwifery, the issues of the right of midwives to practice
and of the public to have access to their services have become increasingly
significant within the last few years. This heightened interest in midwifery
is in part due to a desire to improve “fragmented, unco-ordinated and
sometimes inadequate” 56 delivery of maternal health care services, and the
recognition that “midwifery services are essential in remote areas because
of the shortage of physicians.”‘157 Recent evidence indicates that even in
urban areas in Ontario the availability of maternal health care provided by
the medical profession is decreasing because of the growing cost of mal-
practice insurance experienced in the past year. Obstetricians’ premiums
increased to $2,900 in 1985 from $1,950 in 1984 and family physicians’
premiums, which stood uniformly at only $500 in 1984, increased to $1,200
for those who practiced obstetrics while remaining at $550 for those who
‘”SAlthough the law as we have seen is unsettled on this point, the proposition would not
be inconsistent with mainstream judicial thought. Keyserlingk, supra, note 51 at 12 who says
that “the emphasis to date in doctrine, jurisprudence and statutes, as regards the unborn, has
been on positive acts of negligence rather than negligent omissions.”
’56Canadian Nurses’ Association, “Statement on the Nurse Midwife” (1978) as cited in
Community Task Force, supra, note 8 at 7.
’57Community Task Force, supra, note 8 at 10. Statement based on a report of the Sub-
Committee on Perinatal Health of the Ontario Council of Health.
1987]
MIDWIFERY IN ONTARIO
did not. 58 These increases have apparently caused a reduction in the num-
ber of doctors willing to perform obstetrics and indicate that there will be
an increasing market for midwives’ services in Ontario, already overbur-
dened by demand.
There is also a growing realization in Ontario that the costs of maternity
care would be greatly decreased under a system of midwifery practice. Evi-
dence from the United States indicates that this would be the case. 59 In
Ontario, with a provincial health insurance plan, this would mean substan-
tial savings to taxpayers.
In response to increased interest in the provision of midwifery services,
Bill 48, which would establish midwifery as an independent self-governing
health profession, was introduced into the Ontario Legislature in April,
1984, by New Democratic Party MPP David Cooke. The bill was supported
by both the Liberal Party and NDP but did not progress to a vote, because
it was considered premature until further studies assessing the impact of
regulated midwifery on the present health care system were made. 60 In
particular, it was thought best to await the findings of the Health Disciplines
Legislative Review Committee, which had been established in 1983 to report
on the proposed legalization of several new health disciplines in Ontario.
Less than a year after these events, public attention was focused on
midwifery through the media coverage of an Ontario coroner’s inquest into
the death of Daniel McLaughlin-Harris, a baby delivered with the assistance
of midwives on Wards Island in Toronto, who died shortly thereafter from
hypoxia. Although the inquest did not make any finding of legal responsi-
bility on the part of the midwives, it became a highly politicized forum for
assessing the merits of midwifery.’ 6′ After a lengthy hearing, on 17 July
1985, the coroner’s jury made several recommendations, the primary ones
being that midwifery be legally regulated in Ontario, covered by OHIP and
subject to compulsory malpractice insurance.162 However, on 18 July 1985,
the Health Ministry issued a press release stating that it did not intend to
158T. Tedesco, “MDs said less willing to deliver babies” The [Toronto] Globe and Mail (11
July 1985) M3.
‘ 59Evenson, supra, note 3 at 320, states that the average cost of midwifery services in 1979
was $800 as compared with $1200 to $2000 for obstretricians, and Yagerman, supra, note 8
at 139, observes that a study of South Florida for 1981 indicated the costs of hospital care
ranged from $800 to $1000. The average cost for midwifery care was $500.
60Bill 48, 4th sess., 32nd Legislature, Ontario, 33 Elizabeth II, 1984. See Hansard Official
Report of Debates (Ontario), 32nd Leg., 4th Sess., 1984 at 3747-55.
161See L. Hossie, “Opposing philosophies at issue in midwife delivery inquest” The[Toronto]
Globe and Mail (1 July 1985) A14.
’62See the verdict of Coroner’s Jury serving on the inquest into the death of Daniel Mc-
Laughlon-Harris held June 24 to July 17, 1985 at 5-8.
REVUE DE DROIT DE McGILL
[Vol. 33
recommend that the practice of midwifery in Ontario be licensed until a
-study was done, despite the recommendations of the coroner’s jury.
Several months later, in January of 1986, the Health Disciplines Leg-
islative Review Committee made its recommendations confidentially to the
Health Minister, who subsequently announced that midwifery was to be-
come a legally regulated profession. 63 The mode of regulation was not
revealed. At present, the question to be decided is how to integrate midwives
into the existing health care system, and a Task Force has been set up by
the Health Ministry for this purpose. The mandate of the Task Force was
to determine such issues as the appropriate type of education and qualifi-
cations for midwives, the appropriate setting for the profession’s practice,
and the most functional relationship between midwives and doctors, and
its report has just been released at the time of this printing. Its findings
should serve to inform the determination of the nature and form of legal
regulation, and for this reason its mandate is of significant import to mid-
wives. Unfortunately, not one midwife was assigned to the Task Force de-
spite the fact that theirs is the very profession in question. Instead it was
composed of representatives from professions more peripherally involved;
Toronto lawyer Mary Eberts (Task Force Chairman), Alan Schwartz, co-
ordinator of the predecessor Health Professions Legislation Review, Dr.
Rachel Edney, former president of the Canadian College of Family Physi-
cians, and Kathryn Kaufman, associate professor at McMaster University
School of Nursing. 164 The intent was to keep the Task Force “neutral” which,
while perhaps true of individual members, is ostensibly not the case on a
representative level. Midwives along with the rest of the general public were
entitled to make submissions to the Task Force for its consideration.
In structuring a scheme for the regulation of midwifery, it is useful to
review Bill 48.165 The bill is entitled “An Act to establish Midwifery as a
Self-Governing Health Profesion,” and would have amended the Health
Disciplines Act by adding Part III-A to establish the profession of midwifery
independently from other health professions such as medicine and nursing.
The responsibility for determining the standards of knowledge and skill as
well as the standards of qualification for the practice of midwifery would
have been granted by section 67b to a body called the College of Midwives
of Ontario, analogous to the present College of Physicians and Surgeons of
Ontario which governs the practice of medicine, and the Council of the
163This significant step unfortunately went largely unnoticed since it occurred at the height
164See B. Walker, “Midwife services to get legal status legislature told” The [Toronto] Star
of Ontario’s “extra-billing” controversy, which stole most of the headlines.
(24 January 1986) A4.
165Bill 48 was preceded by Bill 31, which was withdrawn due to a drafting error. See supra,
note 160.
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MIDWIFERY IN ONTARIO
College would control the granting, revoking and standards of licencing in
comparable fashion. Section 67m provided for the establishment of a Dis-
cipline Committee to deal with complaints and allegations of professional
misconduct or incompetence.
Although the bill would not have completely resolved the conflict
among the professions of medicine, nursing and direct entry midwifery, it
appears to have been directed in favour of proponents of direct entry mid-
wifery. No requirement of physician supervision was made, and this would
have successfully eliminated the problem prevalent in American jurisdic-
tions of midwives being unable to provide services to clients in non-hospital
environments due to physicians’ reluctance or inability to participate. It has
already been noted that the requirement of physician supervision in other
jurisdictions has yielded a host of problems restricting effective practice,
such as physicians participating in midwifery being refused hospital ad-
mitting privileges or denied malpractice insurance by their insurance com-
panies. 66 Such measures have prevented nurse-midwives from obtaining
the physician supervision required in order to practice. In addition, phy-
sicians are put under much pressure from their own profession not to attend
home births or engage in co-operative practice with nurse-midwives, and
fear that such practice will be considered professionally negligent and
thereby increase their malpractice liability. The Ontario bill would have
largely alleviated these problems by keeping physicians and midwives pri-
marily separate rather than interdependent.
Commentators in American jurisdictions have also noted problems
with nurse-midwives being denied health insurance coverage, 167 making
their services unappealing to consumers. This problem should not arise in
Ontario, since the Health Insurance Act allows for coverage for services
delivered by both physicians and other persons lawfully entitled to render
insured services, which would include midwives in the event that they be-
come regulated. 68
By leaving the determination of what constitutes sufficient qualification
to practice midwifery up to the Council of the College (section 67f(e)), the
bill would arguably have left open the possibility of requiring a nursing
degree to practice, effectively establishing a profession of nurse-midwifery
’66See Evenson, supra, note 3 at 322.
167See McCormick, supra, note 7 at 676ff.
168See Health Disciplines Act, S.O. 1974, c. 47, s. l(b), s. 45(l)(b), s. 50, s. 52(1). It is also
interesting to note that the Canada Health Act, S.C. 1984, c. 6, s. 2 allows for federal contri-
butions to provincial health insurance plans, including services rendered by lawfully entitled
practitioners, and home care service. A statutorily created regulatory system for midwifery
would entitle the profession to this additional source of funding for provincial insurance cov-
ering maternity care.
McGILL LAW JOURNAL
[Vol. 33
rather than lay midwifery. This route, however, would likely have been
precluded by the stated purpose of the bill, which was to “establish mid-
wifery as an independent, self-governing health profession along the lines
of medicine and nursing” (emphasis added). Furthermore, section 67d pro-
vides that the composition of the Council be 18 to 25 members of the College
of Midwives, and non-members sitting on the Council must be lay persons
since they cannot be registered or licensed under “any other Act governing
a health practice,” so that the interests of medicine or nursing would prob-
ably not have been represented by the Council in its setting of regulations.
Nevertheless, the possibility of certain conflicts between the medical
and midwifery professions is left open, due to the failure of the bill to define
clearly the realm of health care allocated to each profession. Midwifery is
defined in section 67a(l)(f) of the proposed bill as follows:
“practice of midwifery” means the supervision, care and counselling of women
before, during and after pregnancy and labour, and includes,
(i) conducting normal deliveries independently,
(ii) caring for the newborn,
(iii) taking preventative measures,
(iv) detecting abnormal conditions in mothers and the newborns,
(v) obtaining medical assistance,
(vi) taking emergency measures in the absence of medical assistance, and
(vii) providing counselling and education to the community concerning
health, preparation for birth and parenthood, family planning and child care.
Although the provision for “conducting normal deliveries independ-
ently” [emphasis added] is progressive in that the requirement of physician
supervision stipulated by many other jurisdictions is absent, no definition
of what constitutes “normal delivery” is given. In view of the radically
different approaches to childbirth taken by the medical profession and the
profession of midwifery, it is likely that their respective definitions of “nor-
mal delivery” will also differ. Because there is no requirement of physician
supervision the responsibility for “detecting abnormal conditions in mothers
and the newborn” is given to midwives, but this reveals nothing about what
is to be the standard of normalcy. As Evenson notes:
Most midwives would agree that where there are serious health risks, such as
diabetes or high blood pressure, or where there is evidence of complicating
factors, the clients should be referred to a physician. But there is a substantial
difference of opinion as to what is “normal”…. Practitioners differ on what
is a normal length of labour, the age of the mother as related to risk, and
whether breech presentations must be delivered by Caesarean section. 169
In the event of an allegation of negligence or professional incompetence,
a heavy burden may be put on the midwife if medical opinion is used as
169Evenson, supra, note 3 at 323.
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MIDWIFERY IN ONTARIO
the source for the definition of what is a normal condition of pregnancy
and childbirth. However, the use of a standard risk-determination system
such as that proposed by the OAM above might help to alleviate this prob-
lem by serving as a reference point before a court or tribunal.
As the bill also gave the responsibility of “obtaining medical assistance”
to midwives, the determination of the appropriate circumstances for sum-
moning medical assistance would have posed problems similar to those just
discussed. Although the Council of the College of Midwives would have
been given power by the bill to establish professional standards for mid-
wives, such standards would not necessarily be those that would be applied
by a court in the event of an allegation of criminal or tortious negligence.
As the bill said nothing about the place in which care is to be provided,
this issue becomes crucial for midwives undertaking to deliver care at home
births. It has been seen that representatives of the medical profession con-
sistently oppose home birth as a dangerous practice. Depending on the
approach to standards taken by the College of Midwives itself, participation
in home births might have amounted to professional misconduct under the
bill, making the midwife subject to disciplinary action.
The general tendency of courts to defer to the opinion of the medical
profession, on which a substantial body of case law has been built,’ 70 may
thus work to the detriment of midwives and this problem was not resolved
by the bill. In this respect the statistical data discussed above would be
highly pertinent in supporting an assertion before the courts of more ob-
jective standards of care and professional practice.
V. Conclusion
The irony of the social reduction of the pregnancy and childbirth process
into a mere medical episode over the course of recent western history has
become apparent in recent years. The loss of the traditional midwife in our
society has been an unfortunate event in terms of both health interests and
sociocultural values. The recent introduction of Bill 48 into the Ontario
Legislature signals a revived interest in making the experience of pregnancy
and childbirth more fulfilling for the individual, as well as evidencing its
deserved social significance. The proposed legislation appeared to balance
interests correctly by making midwifery an independent profession with its
own educational requirements, while imposing on it the onus of determining
occasions for the propriety of medical intervention, and for these reasons
is an important progressive step.
170See, e.g., Lustig v. The Birthplace, 27 ATLA L. Rep. 87 (Wash. Co. Ct 1983) in which a
wrongful death action against nurse-midwives succeeded on “expert evidence” that the decedent
should have been referred to a physician.
REVUE DE DROIT DE McGILL
[Vol. 33
While this form of legal regulation could not by itself resolve the tort
and criminal issues involving midwives, it would help to alleviate the formal
bias in our legal and health care systems to rely on physician care as a matter
of course by legitimizing the practice of midwifery. The issues in tort and
criminal law must be sorted out by the courts once midwifery is regulated.
However, statutory regulation is still a long way off. In the interim, Ontario
midwives can best serve their interests as health care innovators by con-
tinuing to educate the public on the merits of midwifery care, in order to
dispel the image of midwifery as a “fringe” or “alternative” form of health
care and allow for full integration into the health care delivery system. Pay
Hayes, writing in 1971, succinctly described this concern:
On the one hand, if the midwife is given value only as a poor substitute for
the doctor, there will be rejection and poor use of her skills. On the other hand,
if she is introduced as a clinical specialist in her own sphere and allowed to
function in a way that expresses her special field of knowledge, acceptance and
utilization would be assured.’ 7′
This insight dictates the solution of independent professional regulation
for midwives, in order to achieve the goal of comprehensive, quality health
care services for the residents of Ontario.
17p Hayes, “Midwives? In Canada? Let’s Hope So!” (1971) 67:7 Canadian Nurse 19.
