On November 20, 2002, the Illinois Supreme Court heard oral argument1 in the matter of People ex. rel. Sherman v. Cryns.2 When a decision is delivered, it could significantly influence the State of Illinois’ approach towards regulating the practice of midwifery.
This article will first familiarize the reader with the Cryns case by explaining the lower court decisions. An analysis of these decisions reveals the current state of the law in Illinois pertaining to midwives and explains the issue being currently deliberated by the Illinois Supreme Court. Second, this article will report other states’ approaches towards the practice of midwifery. States’ approaches to midwifery are not uniform. Not all states choose to regulate midwifery, and those that choose to regulate it have done so in differing ways. The article concludes by evaluating the approaches to midwifery that could result in Illinois depending upon the decision in the Cryns case.
The Cryns Case
On April 7, 2000, a cease and desist order was issued by the Department of Professional Regulation, ordering Yvonne Cryns to immediately cease and desist the practice of nursing and midwifery in Illinois until she complied with the provisions of the Nursing and Advanced Practice Nursing Act pertaining to licensing as a nurse or advanced practice nurse.3 The Department later filed a complaint for a preliminary injunction pursuant to Cryn’s alleged violation of the order when she attended the home birth of Spencer Verzi on April 19, 2000.4 Baby Spencer died upon delivery.5
The McHenry County circuit court initially granted a motion by Cryns for a directed finding on the Department’s request for a preliminary injunction, but stayed the order subject to an interlocutory appeal.6 On May 7, 2001, the Second District Appellate Court issued a decision reversing the trial court’s determination, finding that the trial court abused its discretion in ruling on plaintiff’s request for a preliminary injunction without viewing a videotape of the birth, which had been entered into evidence.7 Upon remand and after reviewing all of the evidence, including the videotape, the trial court reaffirmed its decision to grant Cryn’s motion for a directed finding and to deny the Department’s request for a preliminary injunction.8 The Department appealed again to the Second District and the court heard the interlocutory appeal.9
After reviewing the evidence, the Second District held that the Department established a prima facie case that Cryns had practiced nursing or midwifery without a license, and, consequently, that the trial court had erred in granting Cryn’s motion for a directed finding.1 0 The court held that the testimony of Louis Verzi, baby Spencer’s father, as well as the videotape admitted into evidence, supported the Department’s prima facie case that defendant was practicing nursing or midwifery without a license.1 1 The court noted that, under section 65/5-15 of the Act, "any person practicing or qualified to practice professional and practical nursing in Illinois shall submit evidence that he or she is qualified to practice, and shall be licensed as provided under the Act…" and "no person shall practice…nursing in Illinois…unless such person has been licensed under the provisions of this Act."1 2
Turning to the question of whether any of Cryn’s actions should be regulated by the Act, the court stated that "[p]ursuant to section 5-10(l) of the Act, ‘[r]egistered professional nursing practice’ includes, in pertinent part:
‘all nursing specialties and means the performance of any nursing act based upon professional knowledge, judgment, and skills acquired by means of completion of an approved registered professional nursing education program. A registered professional nurse provides nursing care emphasizing the importance of the whole and the independence of its parts through the nursing process to individuals, groups, families, or communities, that includes but is not limited to: (1) the assessment of healthcare needs, nursing diagnosis, planning, implementation, and nursing evaluation; (2) the promotion, maintenance and restoration of health; (3) counseling, patient education, health education, and patient advocacy.’ "1 3
After reviewing the evidence, which included the videotape, the court concluded that Cryns had assessed both baby Spencer and his mother’s "healthcare needs" and made "nursing evaluation[s]" in violation of section 5-10(l) of the Act.1 4 That is, Cryns had checked the mother’s cervix to determine if the mother was fully dilated and checked the baby’s heartbeat in utero with a fetoscope.1 5 Furthermore, the court held that Cryn’s actions involving the birth constituted a further violation of section 5-10(l) of the Act when Cryns "attempt[ed] to promote, maintain, and restore Spencer’s health when she pulled and twisted him through the vaginal opening and tried to resuscitate him after birth."1 6 Cryns tried to resuscitate the baby with an ambu bag, a device specially made for forcing air into an infant’s lungs.1 7
Having found that Cryn’s actions were properly regulated by the Act, the court reversed the judgment of the circuit court of McHenry County denying the Department’s preliminary injunction and remanded the case.1 8 However, as explained above, the Illinois Supreme Court granted Cryns leave to appeal and is presently in the process of rendering a decision.
States’ Policies Regarding "Direct-Entry" Midwifery
Midwives are often classified as either of two types, "nurse" midwives or "direct-entry" midwives.1 9 Nurse midwives gain certification as nurses pursuant to law or regulation and provide maternity care, well-woman care, and family planning services, generally in hospitals or birth centers.2 0 By contrast, direct-entry midwives become midwives primarily through apprenticeship and self-teaching.2 1 However, direct-entry or "traditional" midwives often gain certification from a variety of national organizations, such as the North American Registry of Midwives.2 2 All states regulate the qualifications and entry into the profession of nurse midwives by statute or regulation.2 3 However, entry requirements for direct-entry midwives may be statutory, regulatory, judicial, or "legally ambiguous."2 4
States have developed different approaches in dealing with the practice of direct-entry midwifery. In some states it is legally prohibited.2 5 In other states direct-entry midwifery is legal, but regulated.2 6 Still in other states, direct-entry midwifery is legal and unregulated.2 7 Furthermore, some exceptions exist in states where direct-entry midwifery is legally prohibited.2 8 For example, in Alaska, Delaware, and Nebraska, there is an exemption for midwives serving traditional religious or cultural communities.2 9
Evaluating the Possible Aftermath of the Cryns Case
If the Illinois Supreme Court were to hold that Yvonne Cryn’s actions should be characterized as those of nursing under the Act, a midwife could not effectively practice his or her profession in Illinois without being licensed as a nurse. Perhaps, as a spokesman for the Department of Professional Regulation stated, the result will be to improve the safety of mothers and babies.3 0 This result, it seems, is best achieved by ensuring that the most highly qualified professionals attend to the important task of delivering infants. There is no doubt that this rationale is shared by the other states which legally prohibit midwives from directly entering the profession without being first licensed as nurses.
However, if the Supreme Court should hold that the Act does not apply to Cryn’s actions, direct-entry midwives will be effectively unregulated by Illinois law. Many grass-roots organizations and scholarly works tout the benefits of home-birthing and practices of direct-entry midwives.3 1 In addition, if the court holds for the Department in the Cryns case, there remains the fact that there are no exceptions such as those provided in other states that regulate direct-entry midwives. Communities that prefer non-physician, non-nurse deliveries would have to make a tough choice regarding how they proceed to birth their children. In the alternative, members of these communities might also have to go against their beliefs and pursue education and certification. Weighing the reasoning supporting either the regulation or non-regulation of direct-entry midwives, it appears that there are no easy solutions. However, hopefully the Cryns case at least serves the purpose of bringing attention to an area that merits consideration.
1 Jim Day, Midwifery Awaits Word From High Court Newborn’s Death at Heart of Case, Chi. Trib., Dec. 31, 2002, at 3.
2 People ex. rel. Sherman v. Cryns, 327 Ill.App.3d 753, 763 N.E.2d 904 (2d Dist. 2002).
3 Cryns, 763 N.E.2d at 907.
5 Id. at 908.
6 People ex. rel. Sherman v. Cryns, 255 Ill.Dec. 117, 748 N.E.2d 821, 823 (2d Dist. 2001).
7 See id.
8 Cryns, 763 N.E.2d at 907.
9 See id.
10 Id. at 915.
12 Id. at 914.
14 Id. at 915.
18 Id. at 917.
19 Susan Corcoran, To Become a Midwife: Reducing Legal Barriers to Entry into the Midwifery Profession, 90 Wash. U. L.Q. 649, 652 (2002).
20 Id. at 653.
23 Id. at 652.
25 State Laws Governing Direct Entry Midwifery, American College of Nurse-Midwives, available at http://www.acnm.org/prof/display.cfm?id=93 (on file with the author).
30 Day, note 1 supra.
31 See, e.g., Corcoran, note 19 supra, at 654 (reporting a study which found that there is a substantially reduced infant and neonatal mortality rate among midwife-attended births as compared to similar births attended by physicians).
Andrew L. Honaker is a third-year student at the Northern Illinois University College of Law. He serves as Notes and Comments Editor of the Law Review; an associate justice of the Moot Court Society; a full-time graduate assistant tutor in the Academic Support Program; a 3L SBA representative; and a competitor in external moot court competitions.