When a Home Birth Ends in Tragedy, Can the Midwife Go to Jail?

What the case of a Baltimore midwife tells us about midwifery and the law.

Many midwives involved in home-birth deaths avoid manslaughter charges

Last week, a midwife named Karen Carr pleaded guilty to two felonies for her role in a Virginia home birth and was sentenced to a few days in jail and less than $10,000 in fines and restitution. Considering the punishment she risked at trial, the plea deal seemed like a wise one: she had been indicted on a slew of charges, including involuntary manslaughter, after a delivery in which an Alexandria, Va., client’s breech baby got stuck and subsequently died. Depending on your point of view, Carr is either a compassionate professional who believes in a pregnant woman’s autonomy or an ideologue who acted as if she was above the law. But what is the law? Is a midwife criminally liable for a birth that goes wrong? And how often are midwives actually prosecuted?

The most serious charge in this case was involuntary manslaughter. Carr, who is based in Baltimore and has presided over 1,200 births, could have served up to 10 years if she’d been found guilty on this count—which in Virginia is defined as unintentional killing resulting from “callous disregard for human life.” Involuntary manslaughter charges are brought for all manner of crimes in which someone has behaved negligently or recklessly—drunk and speeding drivers, parents who inadvertently leave their children behind in hot cars, and, in one Virginia case, a woman who let her three violent pit bulls run loose until they mauled an 82-year-old woman to death. On rare occasions, even physicians have been charged with manslaughter; take the pending case of Michael Jackson’s doctor, Conrad Murray.

Chief Deputy Commonwealth Attorney Krista Boucher told me that the decision to charge Carr with involuntary manslaughter had nothing to do with the fact that she is a midwife; Boucher said that if a doctor had behaved in the same way, she would have prosecuted that doctor. Instead, she told me, it was the totality of Carr’s actions that led the state to press criminal charges.  So what were those actions? The facts of the case, as we know them: The mother was a 43-year-old who wanted to have her first baby at home. While it’s not illegal in Virginia to deliver a breech baby at home, it is risky; another midwife practice had already turned the mother down for that reason. During the delivery, the baby’s head became trapped for 20 minutes, according to an account Boucher gave to the Washington Post, and then Carr and two assistants tried to get his lungs going for 13 minutes before calling 911. The baby never became conscious and was taken off life support two days later, the Post reported.

Midwife manslaughter cases are unusual, perhaps in part because moms with high-risk pregnancies are more likely to deliver in hospitals. I located just five criminal cases similar to Carr’s over the last decade or so, and they have tended not to be slam dunks. In Pennsylvania in 2009, a midwife was acquitted of involuntary manslaughter and endangering the welfare of a child after the death of a breech baby. The judge called her behavior “abhorrent” but said her acts didn’t rise to the legal standard for either charge. The midwife was instead convicted of practicing midwifery without a license, and she paid a $100 fine. (Meanwhile, the parents defended her, saying she honored their wishes not to deliver in a hospital.) In Illinois in 2000, yet another breech baby died after becoming stuck in the birth canal. A jury acquitted the presiding midwife of one charge of involuntary manslaughter and deadlocked on the second. To avoid a retrial, she later pleaded guilty to reckless conduct, a misdemeanor charge, and was sentenced to 18 months probation.

Such cases may also be rare because families are often reluctant to press charges. Take the case of another Virginia midwife who in 1999 was charged with involuntary manslaughter when a woman in her care died hours after a home birth. Her defense said it was prepared to pick apart the state’s medical evidence, but the fact that the woman’s husband declined to cooperate with prosecutors may have inclined them to cut a deal. The midwife ultimately pleaded guilty to several lesser misdemeanor charges.

While midwife manslaughter cases are uncommon, midwives have more frequently been charged with practicing midwifery without a license. Indeed, this was another of the charges Carr faced before she cut a deal. Why would a midwife operate without a license? Typically, it’s because she’s attending home births in a state where she can’t get a license. Only 27 states currently offer licensing or formal recognition to certified professional midwives, the biggest group of midwives trained to perform home births. (The other main group, certified nurse-midwives, has more advanced credentials and can operate in all states, yet its members deliver almost exclusively at hospitals.) In the other 23 states, and in the District of Columbia, a midwife nationally certified by the North American Registry of Midwives, the accrediting body for certified professional midwives, is at risk of getting arrested for delivering a baby. This means that every time Carr delivered in her home state of Maryland, she was operating outside the law, since she can’t be licensed there.

But Virginia is one of the states that does offer licensing for certified professional midwives—it’s just that Carr, a CPM since 1997, didn’t bother to get licensed there. Her lawyer, Stuart Sears, told me that’s because the state’s regulations prevent certified midwives from administering drugs, such as anti-hemorrhaging medications. “Not just Karen but a lot of midwives they feel like that’s not appropriate,” Sears said of the restrictions.

There is a strain of civil disobedience in the culture of modern midwifery, a sense that the profession is serving the needs of women, even if state legislatures haven’t yet caught up and even if doing so comes with some legal risk. Many midwives see this not as a job but as a mission that calls them to help women deliver the way they have for thousands of years, a mission that has only grown more essential in the face of hospitals’ astonishingly high Cesarean rates. (Indeed, many midwives say tragedies like the one in Alexandria are a consequence of the dramatic increase in C-sections, which pose their own risks to mothers and babies. If more hospitals permitted women with breech babies to attempt vaginal birth, with C-sections used only as a last resort, they say, fewer women would face the choice that Carr’s Alexandria client did.) Finally, many midwives are motivated by personal experience: In 1995, a Baltimore sheet-metal worker told the Washington City Paper about the trauma of being given a C-section when it was discovered during labor that her first baby was in a breech position. She “felt violated and powerless,” the City Paper reported in a long story on midwives, “and vowed never again to give birth in a hospital.” The woman was Karen Carr, and it was this event that caused her to begin training as a midwife.

Will Carr’s prosecution have a chilling effect on other midwives, discouraging them from taking on risky home births, or from practicing at all? It seems unlikely. For one thing, the recent rise in home births suggests that momentum is on their side: Midwives point to the fact that demand for home deliveries, while still modest, is increasing. Such deliveries rose from 0.59 percent of all American births in 2006 to 0.67 two years later, according to the CDC. (That’s 28,357 home births in 2008. Only a small number of those were of the oh-no-the-baby’s-coming-too-fast-to-get-to-the-hospital variety; the rest are planned home births.)

Besides, says Carr’s lawyer, “I don’t know that the midwife community is especially prone to chilling.”