A New Look

How do you like The Mommy Blawg's new look? Revka at RS Designs created the custom header for me. She and Linda from Mama’s Coffee Corner are running a contest to launch their blogs (ends today - hurry!) , where you can win a free custom header, a $20 Amazon gift certificate, or a box of Brazillian goodies. Revka's headers are beautiful and her service is great and speedy, so if the look of your blog just screams "free Blogger template", head on over and get yourself something new.

I also updated my links on the right side. I pared down the list of legal blogs and added a section called "Lawyer Moms". If you are a mother and a lawyer (including law student or non-practicing attorney) and blog even a little bit about both, let me know and I'll add your blog to my list.

My next project is to update The Baby Blawg. I want to add a link section there for birth biz blogs, and another for my favorite childbirth, breastfeeding, and baby care websites, as well as recommended reading. That's the plan, anyway.

Placentas, Protests, and Property Rights

Before Anne Swanson gave birth at Sunrise Hospital in Las Vegas, she requested that her placenta be saved so that she could take it home. At the time of discharge, however, the hospital refused to release the placenta to her. According to placenta activist Jodi Selander, "There are no laws in NV that state a hospital can not release a placenta, yet the hospital refused because it 'was not comfortable' doing so." (link)

Swanson is now waging a legal battle against Sunrise for possession of the placenta. The hospital normally keeps placentas in cold storage for three days, then disposes of them. According to Swanson, the hospital has informed her that it will not release the placenta without a court order, and will destroy it on May 15th. A pro-placenta rally was held on Monday, May 7, and supporters are planning a push for legislation, similar to that passed by Hawaii last year, which would require hospitals to release non-infectious placentas to patients on request. The Hawaiian statute states:

§321-30 Human placenta. Upon negative findings of infection or hazard after appropriate testing of the mother, the human placenta may be released by the hospital to the woman from whom it originated or to the woman's designee. The department shall establish a release form which shall stipulate appropriate measures for the safe release of human placenta.

That seems pretty simple and covers all the bases, doesn't it?

I know that stopping the spread of infectious disease is serious business, and proper disposal of hospital waste is an important part of that. We don't want needles and body parts thrown in dumpsters, where they might be discovered by dogs, rats, and homeless people. But look at it this way: Baby comes out of mommy's uterus - baby gets taken home. Placenta comes out of mommy's uterus - placenta gets thrown away. Placenta is infectious waste. Baby isn't. Huh? Yes, I know that the baby is a living, breathing human, and the placenta is an organ. But for some people, placental burial is an important religious or cultural ritual, and for others, it is about having control over one's body and retaining ownership of its products.

Now, to turn to the broader legal question: does a person have a property interest in his or her own cells, organs, or body parts? I'm not going to give this question the full treatment, but the leading case on this issue seems to be Moore v. Regents of University of California, 793 P.2d 479, 51 Cal.3d 120 (1990). In this case, university researchers used tissue taken from Moore's diseased spleen to create a cell line which they later patented. The Supreme Court of California held that Moore did not have property rights to or a financial interest in his cells (Wikipedia). Part of the Court's reasoning was that California statutory law restricts a patient's control over his or her medical waste, citing California Health and Safety Code section 7054.4:

[n]otwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety."

Of course, each state may come out a little differently on this issue (California Supreme Court decisions not being binding on the rest of us). And even if a person does have an ownership right to their body parts doesn't mean they necessarily have a possessory right to them. As we learn on the first day of property class in law school, property rights are like a bundle of sticks.

If you are finding this fascinating, you may want to read Ownership of Human Tissue: A Proposal for Federal Recognition of Human Research Participants' Property Rights in Their Biological Material, Wash. & Lee L. Rev. (Winter 2004). I didn't - it was too long and I dont' have the time. But I did get out my bluebook for that cite, which I'm hoping makes up for the fact that a cited to a Wiki a couple paragraphs ago.

Anyhow, hope that give you something to - er - chew on.

Links:
Diva/Mamma (the go-to blog for this case)
Placenta Benefits
Placenta befouled, mom told (Las Vegas Review-Journal)
Making pills from placentas (Las Vegas Review-Journal)
Action News 13 Las Vegas (video)

International Midwives Day

Today is International Midwives Day (also variously called "International Day of the Midwife" or "International Midwifery Day"). Call or write you midwife and thank her!

It's a great day to host an event, such as a picnic, lecture, protest, etc. to help raise awareness of midwifery care. The International Confederation of Midwives has some more ideas (.pdf). So if you are part of a consumer, homebirth, or natural parenting group, you might want to start planning something for next year.

The Seattle Midwifery School has information on how you can help a library or bookstore create a display.

Wisconsin has reason to celebrate. Not only did the governor declare May 5th International Midwives' Day, but this week marked the first home delivery by a licenced midwife since that state's newly-enacted regulatory scheme went into effect. Congratulations to Wisconsin midwives and midwifery supporters for all their hard work.

Louisa at Mama (Mid)Wife Madness answers the question "Why does the world need midwives?".

In The News

Medical case wins $2.27M: Jury finds midwife guilty of neglect.

Greene Co. sheriff says procedures followed in childbirth death.

Police Taser Man Holding Baby

Taser used on dad leaving Houston hospital with baby

Apparently, there was some confusion over whether the dad was kidnapping the baby, or just leaving the hospital AMA.

Breastfeeding Legislative Update

Tanya Lieberman, host of The Motherwear Blog, has done an excellent job of summarizing recent breastfeeding-related legislation. So much so, that I don't feel like I need to do my own, which I was - sort-of - working on. I do have a couple additions to the list, below.

La Leche League maintains a Summary of Proposed Breastfeeding Legislation; however it is not as complete as one would like.

Texas - The September, 2006 issue of ParentWiseAustin covered the state's NIP statute thoroughly:

What’s the big deal about breastfeeding in public? The law, that’s what. Although it protects a woman’s right to breastfeed in Texas, few folks know about it and, even if they do, they don’t necessarily have to follow it. We explain why beginning on page 8.

Excellent reading. I even learned some things, such as the fact that a woman who feels that her right to breastfeed has been interfered with can file a complaint with the Texas Department of State Health Services , which "responds to complaints by sending a letter to the facility where the alleged violation occurred, explaining the law and encouraging the owner or manager to inform employees about it." They get about 2 or 3 complaints a month.

Also, the Texas DSHS has a number of brochures and other breastfeeding information which can be ordered or downloaded, including a "licence to breastfeed in public" card.

Wisconsin - Assembly Bill 104/Senate Bill 30 would guarantee the right to breastfeed in public and put in place a fine not to exceed $200 for interfering with a breastfeeding mother. Also, the city of Madison approved a breastfeeding ordinance in January.

Internationally, Chile passed a law this year giving mothers the right to breastfeed their child at work; and the city of Toronto is hoping to raise public awareness of the protected nature of nursing in public.

Midwifery Legal Update - Iowa, California

Certified Professional Midwife Melanie Moore of Iowa has been charged with violating Iowa Code Section 147.2, practicing medicine without a license, a class D felony. She has not been arrested, but a court appearance is scheduled for later this month.

Licensed Midwife and Nurse Practitioner Marcia McCulley of Simi Valley, California was arrested on March 14th at her office for practicing medicine without a license. According to eyewitness accounts, agents from the LA County Sheriff's office entered the premesis, where clients with babies were present, with guns drawn. Pursuant to a search warrant, patient charts were seized (anyone know the HIPPA ramifications?). Ms. McCulley seems to be in trouble with both the California state Nursing and Medical boards. You can read about it on the birth center's website.

New Email Address

Please note that I've changed my email address to (in standard format) mommyblawger at gmail.com. Thanks!

Blawging Moms

Ooh, I found a new (well, less than 6 months old) blog written by lawyer-moms (3 of them), Mamalaw.

HT: The Porch Light

Doula Liability

Doulicia (like yours truly, a non-practicing lawyer) covers Doula Liability and Insurance.

Immigration Raids Split Families

Look, I'm a conservative. I suport enforcement of immigration laws. I'm all for building a big, tall, fence. But this goes too far:

This past week in Massachusetts, most of the 361 workers picked up in a raid at a New Bedford leather-goods factory that made vests and backpacks for the U.S. military were women with children, setting off what Democratic Gov. Deval Patrick called a "humanitarian crisis."

Community activists scrambled to locate the children, offer infant-care tips to fathers unfamiliar with warming formula and changing diapers, and gather donations of baby supplies. One baby who was breast-feeding had to be hospitalized for dehydration because her mother remained in detention, authorities said.

Child-care arrangements had to be made for at least 35 youngsters.

Officials of the U.S. Immigration and Customs Enforcement division released at least 60 of the workers who were sole caregivers to children, but more than 200 were sent to detention centers in Texas and New Mexico.

Midwifery Legislative Update

A lot going on. Let's get right to it.

Federal (US) - The Midwifery Care Access and Reimbursement Equity Act of 2007 (HR 864/S.507) would "amend title XVIII of the Social Security Act to provide for reimbursement of certified midwife services and to provide for more equitable reimbursement rates for certified nurse-midwife services."

Illinois - SB 385 would provide for the licensure of direct-entry midwives. I'm not hearing a lot of buzz about this one.

Indiana - A Midwifery Licensure Bill, HB 1238, is scheduled to be heard by the Committee on Public Health on Monday morning. Quick! Contact your legislator!

Missouri - SB 303 and HB 503 provide for the licensure of direct-entry midwifery. The bill defines "direct-entry midwife" as one licensed as a Certified Professional Midwife by NARM. Currently, the unlicensed practice of midwifery in Missouri is a felony.

North Dakota - SB 2377 was originally a bill making it a Class B Misdemeanor for a person to provide obstetrical services without a license; however it now appears to be a bill providing for a legislative council study "of the provision of obstetrical services by laypeople."

South Dakota - HB 1207, the bill to regulate direct-entry midwifery seems to be dead. HB 1267 would remove the requirement that Certified Nurse-Midwives have a written collaborative arrangement with a physician, which would in effect allow CNMs to attend homebirths.

Utah - SB 243 would amend Utah's Direct-Entry Midwife Act by defining what constitutes a “normal” pregnancy, labor and delivery; and clarify when consultation or transfer is required. Opponents of the bill say that the language is too restrictive, and would effectively end homebirth in the state for all but a handful of women. The Mommy Blawger thinks that legislators, the vast majority of whom have neither given birth nor delivered a baby, are not qualified to define "normal" birth by any stretch of the imagination.

Know of any legislation that I've missed? Shoot me a comment or an email.

Is EMTALA Unconstitutional?

Shadowfax asks the question, and Flea says repeal it. Related discussion at Kevin, M.D.

Pork, Trademarks, and The Other White Milk

I admit I've been in a blogging funk lately. It's been a long, cold, January (o.k., I know I live in Texas but it's cold for here) and we've all been sick with two colds right in a row (except my husband, who escaped the sinus yuck but got himself food poisoning). Not to mention my 3 boys have birthdays 3 weeks apart from mid-January to early February. So I have some excuse. But today it was sunny and over 50 degrees outside, and Spring approaches...

While I was funking, I got scooped on The Lactivist/Pork Board brouhaha by my fellow blawgers. I mean, any story that contains the words "lawyer" and "breastmilk" has Mommy Blawger written all over it, so to speak. Don't ya think?

On to the story... The Lactivist runs a CafePress store where she sells t-shirts and bumper stickers and such with catchy lactivism phrases such as "Eat at Moms" and "The Other White Milk".

Oops.

Seems that the National Pork Board, owner (or not?) of the trademark "The Other White Meat", is concerned about trademark infringement and dilution. They sent a nice long cease and desist letter to the Lactivist, who posts here and updates here. To make a long story short, The Lacitivst got lawyered up, all you bloggers and lactivists out there got really busy (Information Week described it as "National Pork Board Stumbles Into Hornet's Nest Of Bloggers"), Cafe Press pulled the slogan immediately so it was a non-issue anyway, and, most satisfactorily, the CEO of the Pork Board issued an apology. All in just three days. Whew.

Lactivist Amy Philo wrote an absolutely hilarious letter to the Pork people.

In addition to a ton of mommy bloggers (including former lawyer Andi Silverman of Momma Knows Breast), lawyers Denise Howell, Ann Bartow of the Feminist Law Professors, and Ted Frank of Overlawyered, all mentioned the situation, and Marty Schwimmer is responsible for the memorable phrase, "Don't send a demand letter to a blogger if the subject matter is breasts, as they make for good copy."

Kaimipono Wenger of Concuring Opinions summed it up best: "Overall, I can't say that this was a bad legal decision. Just a very bad business decision." No kidding.

Daycare Charges More for Breastmilk

Although most daycare centers are supportive of breastfeeding, the Motherwear Breastfeeding Blog reports that at least one has been charging parents extra to feed babies the real thing:

Here are just a few of the reasons why charging more for serving breastmilk is absurd:

It's safe and requires no special storage. The Centers on Disease Control (CDC) states that breastmilk is not considered a hazardous bodily fluid (something requiring "universal precautions" in health care-speak). As such, it requires no separate storage, protection, or handling by a child care provider.

It's easy. Breastmilk is no more complicated to serve than formula, and does not require mixing and measuring as formula does.

It saves them money. Babies receiving pumped milk are less likely to be sick, which means less disease spread among children in the center, and less absences for both babies and staff. This reduces a center's cost of operation.

Babies are happier and less messy at day care. Breastmilk is more easily digested than formula, so breastfed babies are less fussy, spit up less frequently, and have less diarrhea - all things you want to avoid if you are a day care provider.

All good points. I had always wondered whether breastmilk was considered a hazardous bodily fluid.

News of the Weird

You just gotta love headlines like this one:

"3 Pregnant Teens Break Out Of Group Home: Teenagers Whack Director With Frying Pan, Tie Her Up, Steal Her Purse And Flee In Stolen Minivan"

Childbirth in Africa

Zimbabwe is dismal:

A staggering 42,000 women died in childbirth last year, compared with fewer than 1,000 a decade ago.

And Zambia is not much better:

"Being pregnant in Africa is like having an unknown disease," says Zambian mother Alice Tembo, referring to many of her compatriots' lack of basic knowledge about pregnancy and childbirth.

She has recently given birth without any complications, which is exceptional in a country where the maternal mortality ratio is 728 per 100,000 live births.

However, Zambia's maternal death rate is still lower that the rate for the whole of the sub-Saharan African region, which stood at a shocking 920 per 100,000 live births in 2000 according to the United Nations Statistics Division.

Internationally, sub-Saharan Africa has by far the highest ratio of maternal deaths. It is more than double the rate for the world as a whole, which is 400 deaths per 100,000 live births.

Indiana Mom Still in Pain

An Indiana teen who was given an incorrect dose of painkiller in her epidural is still in pain three months later:

During childbirth on Oct. 8, Methodist officials said, Baise received the wrong dose of an epidural painkiller. In one hour, she got a dose that was supposed to be given over 10 to 12 hours. Initially, it left her unable to walk and with severely limited leg movement.

Lawsuit? You bettcha:

Attorney Nathaniel Lee, who represents the family, is seeking damages. He submitted a complaint on Oct. 20 to the Indiana Department of Insurance against the anesthesiologist, Dr. Gloria Lee, and Clarian Health Partners. The doctor did not return calls, and her attorney, Daniel Fagan, declined to comment.

In Indiana, patients must first go through a complaint process and wait for a ruling from a physicians panel before filing a malpractice lawsuit.

Bill Stephan, senior vice president for corporate communications at Clarian, said in October, "We believe human error entered into the equation."

No kidding.

Midwifery Legal Update - Vermont

The Supreme Court of Vermont this week upheld the license revocation of midwife Roberta Devers-Scott.

The state revoked the midwife's license in December 2004 after an 11-month investigation into her conduct during two births in which one baby died and another suffered alleged brain damage.Devers Scott appealed to Washington County District Court and then to the Supreme Court saying an administrative law officer was wrong to conclude that she had violated midwifery and state professional conduct rules.

Midwifery Legal Update - Pennsylvania

I recently received the following:

Diane Goslin, a Strasburg, Pennsylvania midwife with more than 20 years (and thousands of babies) of experience, will stand trial before the State Board of Medicine at the Harrisburg State Courthouse on Friday, January 26 at 9:30 AM. She is being charged with practicing medicine without a license, practicing nurse-midwifery without a license, holding herself out as a nurse-midwife and holding herself out as practicing medicine.

I have yet to see a press release, news article, or website link on this, but I will update as I get more information. Also, there have been some questions rasied concerning "will stand trial before the State Board of Medicine". It is not clear if this is a criminal trial or an administrative hearing.

Also, Judy Wilson's court date is scheduled for January 30th. If I am reading this correctly, the hearing is the continuation of oral arguments on a Writ of Habeus Corpus. January is looking to be a big month for midwifery in Pennsylvania, a state which was considered "legal" for direct-entry midwifery before 2004.

Breastfeeding Legislative Update - Wisconsin

The county board of Dane County, Wisconsin (i.e. Madison) has enacted an ordinance which "prohibits anyone from interfering with a breastfeeding mother in any public place in Dane County."

While the ordinance overwhelmingly passed the county board, there is a similar measure currently in committees of the Madison City Council as well as the state Legislature.

There are consequences for a violation of the ordinance. Anyone who violates the law could be subject to a fine ranging from $10 to $100, WISC-TV reported.

It is rare, though not unheard of, for a city or county to pass such an ordinance (see Chandler, AZ), and even rarer (this may be the first, outside of Scotland) for a fine to be imposed on those who interfere with a breastfeeding pair.

Independent Birth Center Saves DC $800,000 Annually

The only independent birthing center in the District of Columbia saves the city's health care system an estimated $800,000 per year:

The not-for-profit Family Health and Birth Center, housed in a former supermarket and located in a low-income area of the District, provides gynecological and obstetrical services, as well as parenting advice to women and general health services to children, the Post reports. An increasing number of women are giving birth in the center's birthing rooms, while other women give birth at Washington Hospital Center accompanied by one of the center's seven on-staff midwifes, the Post reports. Preliminary data for 2006 indicate that the center might have delivered a "record number" of infants -- more the 153 last year, as well as the highest percentage ever delivered outside the hospital -- the Post reports. Of infants delivered through the center through mid-October, less than 5% were delivered before 37 weeks' gestation, 2% were considered low birthweight and 7% were delivered through c-sections. Citywide rates for those measures are in the double digits, according to the Post. According to an analysis conducted by Lubic based on an estimate in a recent Institute of Medicine report, the center saves $567,000 annually by reducing the number of preterm deliveries. Using the same formula, Lubic calculated that the center saves almost $285,000 in c-section costs.

Inmate Delivers Baby In Jailhouse Elevator

Inmate Delivers Baby In Jailhouse Elevator: Mother, Baby Transferred To Parkland Hospital

A female inmate housed at the George Allen [Dallas, Texas] Jail Infirmary went into labor early Friday morning and delivered her child before paramedics could arrive. At about 5:25 a.m. the woman, 23-year-old Ada Hernandez, told officers that she was in labor and was escorted to a nurse's station. Medical staff determined that Hernandez needed to be transferred to Parkland Hospital in Dallas to deliver the child. Before the ambulance arrived, Hernandez's labor intensified and she delivered the baby boy in the elevator at 5:43 a.m.

Thankfully, the story has a happy ending - the woman was set to be paroled the same day so she and the baby will be discharged from the hospital.

Midwifery Legal Update - Wisconsin

Midwife Helen Dentice of Milwaukee was sentenced this week to six months of jail time and three years' probation on charges of practicing medicine without a license and delivering a controlled substance (link).

Although one could argue (I am not making a case either way, as I was not there and do not know what happened) that Ms. Dentice was somehow culpable in the death of this baby - and certainly she did not meet the requirements for certification of midwives now in place in Wisconsin - the Mommy Blawger would like to point out that the acts for which she was convicted are perfectly legal and/or regulated in most of the 41 states which authorize direct-entry midwifery, including my home state of Texas.

Breastfeeding Legal Update - Vermont (Delta/Freedom/Mesa)

Freedom and Delta airlines have asked that the complaint filed with the Vermont Human Rights Commission against them be dismissed. (link)

[Emily] Gillette is arguing that her civil rights were violated because breast-feeding is a right protected by Vermont's Public Accommodations Law.

Freedom Airlines argued in a Monday letter to the Human Rights Commission that the federal Airlines Deregulation Act trumps Vermont's human rights law, because state law cannot interfere with air carrier service.

Delta is, not surprisingly, arguing that since the flight attendant was a Freedom employee, they are not a proper party to the complaint.

In this case, the plane was on the ground so there is (apparently) no jurisdictional or choice-of- law question. If the plane was in the air, however, what then? Sounds like a law exam question to me.

(HT: Amy)