When the state Legislature failed to pass a bill to extend birth attendant exemptions under the state midwifery laws and add additional licensing pathways this session, it affirmed the end of a three-year exemption period.
That date, July 1, will eliminate a portion of the state's midwifery law that allowed birth attendants to guide expecting families in lieu of a licensed midwife.
Midwives and birth attendants differ in that a midwife is defined as holding a recognized license through the state. A birth attendant is typically unlicensed, but in many cases, will be somebody who has learned birthing practices through hands-on, generational training.
Ki‘i Kaho‘ohanohano, a Maui-based traditional birth attendant, stopped attending births earlier this year as the July 1 lapse date approached. The last birth she attended was on Molokaʻi.
"She gave birth so fast, if I wasn't staying on her property, she would have been alone," Kaho‘ohanohano said.
And that's the fear with the exemption lapsing: that those who need care will lose access. That could be those in rural areas of neighbor islands where getting to a hospital may not be feasible, those who have had past traumatic experiences while birthing in the past, or those who simply choose to have an at-home birth.
According to the U.S. Centers for Disease Control and Prevention in 2022, more than 500 of the 15,782 births in Hawaiʻi were at home.
Licensing and regulations vary across the country. Some states require specific education, voluntary licensing, years-long apprenticeship, or combinations of the three for licensure.
The North American Registry of Midwives tracks laws in 38 different states and Washington, D.C.
Executive Director Ida Darragh said Hawaiʻi is unique in that the law built in an exemption for traditional practices.
"Hawaiʻi is a little unusual in having the traditional Hawaiian midwives and having those separated from the licensed midwives because that's where the date runs out and there's not an option yet for what to do with the program for the traditional Hawaiian midwives," Darragh said.
In Hawaiʻi, to be and advertise as a midwife, one must have attended a Midwifery Education Accreditation Council, or MEAC, school. There was a period when licensing could have been obtained through a bridge program offered by the North American Registry of Midwives, but that ended in 2020.
There are 23 licensed midwives in Hawaiʻi as of Tuesday, according to the state Department of Commerce and Consumer Affairs, the overseeing body. The Hawaiʻi Home Birth Collective says none are Native Hawaiian.
From an international standpoint, many are concerned about the narrow rules and ending of the exemption.
The Center for Reproductive Rights often works with local communities in advancing reproductive rights. Staff Attorney Pilar Herrero said Hawaiʻi law puts birth attendants in a difficult position.
"Just last year, the UN Committee on the Elimination of Racial Discrimination actually issued recommendations to the United States, encouraging them to reduce and remove barriers to midwifery care and to ensure access to culturally respectful maternity care and midwifery care in particular," Herrero said. "So by imposing new restrictions and new barriers to that care, Hawaiʻi is really moving in the wrong direction."
Herrero said more narrow laws have been seen to disproportionately affect those of color.
"People from communities of color, especially Black and Indigenous midwives get pushed out of the health care workforce, and it leaves those communities with fewer options in terms of where they can go for maternal health care," Herrero said.
House Bill 955 dies in 2023
This last legislative session, House Bill 955 sought to extend the birth attendant exemption by two years to allow for more time to address the issues, and also offered the Portfolio Evaluation Process, or PEP, as a secondary means for licensing.
That bill faced three referrals in the House of Representatives. After it passed both subject matter committees, it went unheard by the Finance Committee, effectively killing the non-fiscal measure.
In a written statement, DCCA said the language of Act 32, which passed in 2019 is laid out.
"...(The) Legislature intended the exemption for birth attendants to be only for a 3-year period, ending July 1, 2023," the department said Thursday.
Others have interpreted the lapse date as just an end to regulations for birth attendants, and others read the law as a poorly-written grandfather clause. These would not be the case.
DCCA, in consultation with the Office of the Attorney General, reviewed committee reports and Act 32, and found that the exemption only applied to the "continued practice of birth attendants who are not midwives through July 1, 2023."
So, by not passing a measure within the three-year period as was intended in Act 32, this means those who continue to practice midwifery as a birth attendant may face penalties.
By state law, midwifery is broadly defined, and includes supervising labor and childbirth to "advice and information regarding the progress of childbirth and care for newborns and infants."
As written in the state's laws, that could be up to $1,000 a day.
Written into Act 32 is a promise of sorts, "By the end of the three-year period, the Legislature intends to enact statutes that will incorporate all birth practitioners and allow them to practice to the fullest extent under the law."
Out of that same Act 32 came the Home Birth Task Force, of which Kaneʻohe resident Kristie Duarte was the chair. The task force offered recommendations to the state Legislature for updated laws to do just that.
Duarte, who is also president of the Hawaiʻi Home Birth Collective, said the task force wanted the state to create a "pathway for other practitioners to be incorporated into the law."
She said attempts over the years have failed.
"They (state lawmakers) didn't follow through with that," Duarte said.
Cultural exemptions still stand
There is, however, a separate exemption written into the law that’s still effective. This exemption protects traditional Hawaiian healers, as recognized by any kupuna council. The keyword is: any.
Kim Kuʻulei Birnie of the nonprofit Papa Ola Lōkahi said traditional birth attendants are still able to practice despite there not being a birth work-specific kupuna council, though some are currently forming.
This exemption states that "traditional Hawaiian healers engaged in traditional healing practices of prenatal, maternal and child care as recognized by any council of kupuna convened by Papa Ola Lōkahi."
Birnie said the emphasis on "a" and "any" defines the wording of the exemption.
"There seems to be this misconception that people say, well, this doesn't apply to us because there's no kupuna council of birth practices, but it doesn't say 'a kupuna council,' it says 'any kupuna council,'" Birnie said.
"If there is a practitioner on Maui, and in the process of his or her birth work, he or she uses lomilomi, if that practitioner is recognized by the kupuna council on their island, then they are protected by being recognized on the kupuna council," Birnie said Thursday morning.
But Kaho‘ohanohano worries that isn't the full protection that's needed.
"I think it would behoove them to put the council together," she said. "I think that recognizing that exemption for Native Hawaiians in general, was very strategic."
For Kaho‘ohanohano, it's clear come July 1.
"In my mind, there's no question as to whether or not traditional birth attendants are going to be illegal," she said.
House Health Chair Representative Della Au Belatti said the loss of regulated birth attendants is concerning.
"What that interim law did was it created a system where the traditional birth attendants had hospital plans," Belatti said this week. "We've actually lost that protection because we failed to pass the law. So we might have less insight now on what's happening, and that's even more dangerous."
Kaho‘ohanohano said that’s already happening. In the last few months, she's had to turn expecting families away.
"The majority of the families that I've served are not going to have anyone at their births besides their family," Kaho‘ohanohano said. "It makes me totally emotional because it shouldn't be happening."
