Home Births and the Courts

My third child, Y, was born at home, at term, after such a gentle labor that the amniotic sac or caul was intact!  I was attended by two amazing midwives---my care during pregnancy, delivery, and postpartum was the best medical care I have ever received.  The unbroken sac is such a portent for good luck & special powers that midwives honor this type of birth and 19th century New England households used to keep these cauls in jars on mantelpieces in houses where their seafaring men were out to sea for safety. 

Y's home birth was at the center of a courtroom battle in 2017, with my ex-husband, Ashok, whose physical abuse was the cause of our divorce, and now our trial, as he had been abusive to our son K between 2014-2017, WHile I had 3 friends in the courtroom, Ashok had none, perhaps because he was too ashamed by the lies he would tell that day. Here is an account of what I said under oath and submitted in written testimony to Judge Simmonds of Berkshire Probate Court in 2017.

Y was born at home, at term, under the supervision of a trained and certified midwife (CNM) with 30 years experience. Our midwife who examined Y at birth and 24 hours later, found a healthy newborn with no jaundice.  At 48 hours after birth, a lactation consultant found Y to be jaundiced, but did not seem overly alarmed as jaundice affects 50% of newborns.  The midwife did return the next day to find the jaundice had progressed and advised that we take Yeshe to the local North Adams hospital to have the bilirubin levels checked. We did as asked and our pediatrician, Dr. Art, confirmed the jaundice and urged us to have blood test. The blood test confirmed that Y had hyperbilirubemia, due to a rare blood incompatibility with my blood type (called ABO incompatibility between MO and baby). 

After Y's blood test, we went home and waited for Dr. Art to call us with results on our home phone as we did not have cell phones yet in December 2007.  Yet Ashok had turned the ringer off our home phone as we were trying to get sleep and still had 3 yr old twins to care for, so we only checked the answering machine an hour after Dr. Art called.  I asked Ashok to drive me to the hospital immediately, but he wanted to wait till my mother arrived to stay home with our twins, because it was Jan 2 and -10 F outside that day.  When we arrived at the hospital, Ashok falsely blamed our delay on me.

In the courtroom, Ashok's attorney lied and implied that our home birth was the cause of the hyperbilirubemia, while exacerbating our lack of diagnosis and delayed treatment. She failed to mention that of the 200,000 cases of ABO incompatibility in the US each year--nearly 99% occur after the baby has been discharged from the hospital where it was born. In short, our home birth did not worsen nor cause Y's hyperbilirubemia.

First, ABO incompatibility affects less than 5% of all newborns in the US, and tends to manifest at 48 - 72 hours after birth. Indeed, most newborns with this condition are asymptomatic at birth. Second, most of the 4 million babies born in US hospitals were not routinely screened for ABO incompatibility in 2007. Third, if Y had been born in a hospital, we would have been discharged after 24-48 hours before hyperbilirubemia usually manifests. My midwife's son was born at Cooley-Dickinson hospital in Northampton with ABO incompatibility, and discharged one day after birth. At 2 days after birth the baby was brought back to the hospital yet nobody questioned the decision of the hospital that discharged them.

Finally, there was nothing about Y's home birth or the midwife's care that caused the jaundice. It was caused solely by the congenital ABO incompatibility that had nothing to do with mode or site of delivery, ie. the home.

Y was admitted to North Adams hospital,  given an IV to avoid dehydration, and phototherapy for two days. Upon discharge 48 hours later, we were given a home phototherapy device that we used a few more days. Y experienced no sequelae of this incident. Ashok's oral testimony was so full of confusion and lies that the Judge failed to understand that newborns born in hospitals do not routinely have their bili levels tested.  Ashok implied that I refused to have Y's billi levels checked at birth, which would not have been possible at home as a billi test requires taking blood as well as a sophisticated laboratory analysis that home birth midwives do not carry. Ashok's attorney asked, “did a doctor test Y's billi levels at birth?”, while failing to note that even hospitals do not test newborn bili levels routinely. The exchange implied that I was the obstacle, rather than admitting that both home and hospital births did not take blood from every newborn to test for bili levels in 2007.   

Ashok implied that when I breastfeed Y in the hospital, they were not getting the benefit of the billi lights--failing to recognize that breastmilk is lifesaving for a newborn, especially one under the bili lights which produce dehydration. Yeshe's IV had fallen out the first night in the hospital and so breastfeeding was the only way to keep this baby hydrated and alive. The first IV had taken 4 tries and another IV might have further side effects such as infection and stress.  I was told that if the second IV fell out, Yeshe might need a transfusion and transport to the Springfield NICU 2 hours away.  

There is only one major and deadly side effect of phototherapy treatment, dehydration.  If a newborn is not given an IV or breastfed, the phototherapy lights––so intense that newborns wears black foam glasses so as not to suffer retinal damage and routinely get sunburned––can be deadly for newborns whose systems are easily shocked by disturbances of warmth, hydration, and nutrition.  The nurses understood the urgency of my breastfeeding every few hours but Ashok implied that my breastfeeding was getting in the way of Y's therapy to the Judge--who had no understanding of neonatal health or survival, nor any awareness of how he was being fooled that day.

In an email submitted to the court, Dr. Art would argue that Y's case was one of the 'most traumatic moments' of her career. This may be because she was a newish doctor and had seen only a few cases of ABO incompatibility in her career. That is hardly our fault, but we can blame Stanford Medical School. Whatever the cause, Dr. Art would submit an email to the court accusing my home birth of endangering the health of our child Y. Further, just days before our trial, Dr. Art would make up to 50 changes in the medical record, all on the same day, many of them about events that had occurred 10 years earlier in 2007 (Y's birth). I will never know if it was guilt, fear, or antipathy against a home birth, but Dr. Art's email to the court was enough to convince the judge to award legal custody to Ashok, despite a report from the DCF (Department of Children and Families) and GAL (Guardian ad Litem) that showed Ashok's ongoing physical abuse of our son K between 2013-2016 (including violent shoving, pushing him off the porch, slamming him into walls, kitchen counters, & stoves). Rather than admit that her views about home birth hampered her ability to care for our children, Dr. Art summarily dismissed all 3 children from her care in 2017 when I wrote, giving her proof of Ashok's physical abuse of K. 

Why does this story matter?  It was as if I had a scarlet letter on my forehead during that trial--H for homebirth.  

If you have a home birth, your Pediatrician might actively work against you for the next decade of your children's care. In fact, she might even support an abusive ex who is physically assaulting your children. 

Dr. Childsy Art seemed to forget that I had stayed home for more than a year after my twins birth, taking them to every medical appointment & developmental check ups (most of which Ashok failed to attend), while also assisting with weekly and daily developmental therapy at our home with physical and occupational therapists.  She knew I studied neonatal and maternal health, and midwifery care.  

Once the Judge and Ashok's attorney knew I had a home birth, I was suspect. It did not matter than I have studied birth for 20 years, have written dozen of essays, and would soon publish an acclaimed volume Sustainable Birth in Disruptive Times (Springer Nature, 2021) with co-editors Robbie Davis-FLoyd and Betty-Anne Daviss, who have advocated for midwifery care and home births across the globe for more than 35 years. 

It is only by telling the truth that we can hope to bend the arc of justice towards women's rights, human rights, newborn rights...