The Fight for Birth: The Economic Competition that Determines Birth Options in the United States

28 Pages Posted: 20 Mar 2018

Date Written: January 1, 2017


The United States has the most expensive maternal and infant care system in the world, yet it also has the highest rate of maternal and infant mortality of any wealthy country. This paradox is a direct result of the economics of birth care. The piecemeal nature of services paid for by insurance, the culture of patient acquiescence to obstetric expertise, and a system that requires litigation to address substandard care all contribute to an expensive system with poor health outcomes. The homebirth midwifery model, though used in less than one percent of all births, is an alternative to the obstetric model and it is highly controversial. But is it safer?

Evidence from other developed countries suggests that midwife-assisted childbirth — both in the hospital and at home — is safe and cost-effective. In the United States, however, conditions for childbirth are determined in a marketplace that includes for-profit hospitals and clinics. The vastly different approach to childbirth that exists between these countries poses the question of which policies and regulations is the best available option — private hospitals and birthing centers, public hospitals and clinics, or home births?

To address these questions, this Article analyzes the history of the state regulation of midwifery as well as legal and policy challenges to these regulations. I begin by discussing the history of midwifery and the current state of midwifery in the United States. I go on to examine litigation initiated by midwives against statutory limitations and licensing requirements under theories of substantive due process, the right to privacy, and conspiracy in restraint of trade. Then, I explore disparate policy and state regulations — or lack of regulations — for midwives, and how those policies affect consumers. Finally, I offer recommendations for new state regulations.

Keywords: law, health care law, birth, cesarean section, health care, costs, obstetrics, due process, american college of obstetricians and gynecologists, right to privacy, anti-trust, home birth, midwives, fetal demise, outcomes, regulation, lobbyist, industry, system

JEL Classification: K32, I18, Z18, I11

Suggested Citation

Brown, Jessica, The Fight for Birth: The Economic Competition that Determines Birth Options in the United States (January 1, 2017). University of San Francisco Law Review, Vol. 52, 2017-2018. Available at SSRN:

Jessica Brown (Contact Author)

Independent ( email )

No Address Available
United States

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