Licensure for Certified Midwives, Liability Protection for Physicians

October 28, 2021

Lay midwives in Illinois had not ever before been allowed to be licensed. But that’s about to change – with important physician liability protections and patient safety measures included.

House Bill 3401 creates the Licensed Certified Professional Midwife Practice Act, which would license those who perform out-of-hospital births and require them to earn certain credentials associated with this license. This legislation is the culmination of stakeholder meetings to address physician concerns and find consensus on divisive issues with previous iterations of midwifery licensure bills. A “licensed certified professional midwife” is an entirely new category of licensure, and different from certified nurse midwives who are licensed under the Nurse Practice Act.

A major sticking point that has held up the bill for many years concerns ISMS’ insistence that any midwife licensure bill include vicarious liability protection for physicians. Out-of-hospital births not attended by physicians or certified nurse midwives that result in baby and/or mother subsequently seeking emergency care places doctors and healthcare facilities at liability risk for any indirect adverse outcome.

The legislation includes provisions that doctors and healthcare facilities cannot be held liable for a poor outcome resulting from the midwife’s services solely on the basis that they consulted with or accepted a referral from a licensed certified professional midwife.

While the trial attorneys staunchly opposed vicarious liability protections, ISMS was able to ensure that these protections were included in the licensure law. 

This bill passed the Illinois Senate last week and cleared the House earlier this week. The legislation will now head to the governor.

Families throughout Illinois are having home births with the services of lay midwives, who are not nurses or medically trained.

Overall, ISMS was successful in securing strict licensure requirements in the bill, which will add important safety protection for families, as well as for physicians and hospitals, with these provisions:

  • Clear informed consent providing for risks of home birth, as well as who is responsible for liability
  • Limited scope of practice
  • Improved education standards to ensure that lay midwives must graduate from a nationally accredited degree program
  • Consultation and transfer protocols when complications arise before and during pregnancy
  • Liability protections for physicians and hospitals

In addition, licensed certified professional midwives will also be required to take continuing education to renew their license.

The State of Illinois will now have a registry to monitor midwife performed births and licensed certified professional midwives must report any adverse outcomes to the Illinois Department of Public Health.

If you have questions, please contact ISMS Senior Vice President of State Legislative Affairs Erin O’Brien by email.

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