Lawmakers have passed a controversial measure to regulate midwifery in Hawaiʻi. It would change the law passed in 2019 that set narrow and strict standards for midwifery licensure and effectively barred traditional Native Hawaiian midwives from practicing.
The 2019 law will sunset this year, so lawmakers were on a time crunch to pass a new law to better regulate midwifery. On Monday, House lawmakers passed a bill that would do that.
Rep. Lisa Marten spoke on the House floor in support of the measure. She explained that the new law balances supporting traditional Native Hawaiian birthing practices and safety.
"I do feel that this allows the Native Hawaiian community to regulate themselves as they see fit or not regulate themselves at all. And the state does not weigh in on that. The state does not comment on that. The state does not set standards for that,” she said.
"However, for other people, the state does set standards and that is a safety issue for our moms and our babies. And that is not something that we are doing for no reason," Marten said.
"We need accountability, and that doesn't mean that all traditional birth attendants make poor choices. But by asking for no regulation, it does not allow us to hold accountable, the few that do. And so for those that want to provide safe services to our community, there are now pathways that are very low barrier to become licensed.”
There are three significant changes to the current law. One is that the measure allows for an apprenticeship Portfolio Evaluation Process – or PEP – to be certified as a midwife. The current law only recognizes schooling that is not offered in Hawaiʻi.
The second is that practicing midwifery without the required certification is no longer a criminal offense — but it would levy fines up to $1,000.
The third is that Native Hawaiian cultural practices are not part of the midwifery definition. The intention is to keep it outside of regulation.
Midwifery advocates still have concerns about the bill
Many midwives showed up at the Capitol to oppose the legislation.
"It's half done. That's the number one thing,” said President of Hawaiʻi Home Birth Collective Kristie Duarte.
"PEP students and qualified midwife preceptors are not clearly protected. Number two half-finished is the Legislature recognized that criminalization was a problem, but let's leave in the heavy fines of $1,000... So half done, if you're gonna end. Criminalization for people to have reproductive choice, do it fully.”
American Civil Liberties Union of Hawaiʻi Policy Director Carrie Ann Shirota explained that the protections written into the bill for Native Hawaiian cultural practitioners may not be enough, although the bill that passed is better than the current law.
"There's some language to recognize Native Hawaiian traditional customary rights as affirmed in our constitution,” she said.
"But Native Hawaiian Legal Corporation, they're experts in Native Hawaiian law and they recommended specific amendments to strengthen that in alignment with ongoing litigation. And so that's something that's missing.”
The Native Hawaiian Legal Corporation and the Center for Reproductive Rights have brought a lawsuit against the state regarding its midwifery law that is still pending.
There are also no protections for other cultures or religions.
Another aspect of the measure that is not yet clear is what exactly the scope of midwifery is — because while there are 18 different actions listed, the language reads “including but not limited to." Shirota used an example of a family member cutting the umbilical cord of a baby at home.
"There would be some people who would say that is under the scope of midwifery and so the lawmaker's duty is to create a statute that's very clear about what is allowed under the law and what's prohibited,” Shirota said.
"No one has been able to really answer that question for us, and I think ultimately it will be the Department of Commerce and Consumer Affairs, to make that decision."
As for the future?
Duarte hopes that the law can be improved and that if it is enacted, the Legislature will come back and insert amendments next session.
"[It] has not been something they have wanted to deal with over the last five years, they dealt with it on the last year they had to, and so amendments are needed,” Duarte said.
"But will they do it? That's their job. So I ask them to do their job.”
The measure passed 34-16 in the House on final reading and will next go to Gov. Josh Green for his signature.
