Last week the South Australian Deputy Coroner released a report into the deaths of three babies in South Australia who died under the care of a midwife who is no longer registered. The coroner identified some serious system and legislative problems that contributed to these incidents and made some potentially important recommendations — along with some potentially concerning ones.

The potentially positive recommendations are that the practice of midwifery should be permissible only in the case of registered midwives under national law as this ensures accountability and the meeting of standards that protect the safety of the public. Midwives who are registered are regulated and have to abide by practice codes and standards and follow the Australian College of Midwives national guidelines for consultation and referral, which the coroner commended in his report. The Australian College of Midwives also has a position statement on home births to guide midwives practice in this area.

However, what is most concerning is the recommendation that legislation be introduced that would “impose a duty on any person providing a health service, including midwifery services to report to the South Australian Department of Health and Ageing the intention of any person under his or her care to undergo a home birth in respect of deliveries that are attended by enhanced risk of complications”.

The concern with this is twofold. First, it may in fact push some women further underground and lead to them not seeking any engagement with health services at all and this will be a significant disincentive to safety, and secondly, it could lead to a serious intrusion into the rights of women to determine what happens to their bodies during pregnancy and birth.

Doctors will be tempted to report anyone intending to birth at home, as they generally espouse that no birth is normal except in retrospect and midwives will be forced into a situation of turning in their colleagues and their clients. How far will this McCarthyism potentially go and who gets to determine what is acceptable and what is not when it comes to women’s choices? What next, court ordered caesareans?

The US has shown us the slippery slope we perch on when foetal rights supersede women’s, with court ordered caesareans, arrests and prosecutions (38 US states now have foetal homicide laws and these laws are increasingly being used to target women who sit on the fringes of what we would consider acceptable behaviour).

Women’s right to control what happens to their bodies during pregnancy and birth may be enshrined in law but this right is frequently violated in practice. To step into this and attempt to regulate a woman’s body has serious ramifications and undoes hard won battles our feminist forbears fought for and the unintended consequences should give us cause for sober reflection.

Where do we stop once we start and who controls what is acceptable behaviour and what is not and who has the “rights” and who does not and what is risky and what is not?

If you are thinking surely not, or only in America, then consider this: in March this year the WA branch of the AMA called on the state government to extend recently proposed foetal homicide laws to include applying penalties to women who choose to have a home birth when there are risk factors in the pregnancy or where they drink alcohol and/or take drugs.

The AMA WA went further saying in essence midwives should be prosecuted as well as they were obviously misguiding these women. Inexplicably they added that they had been reassured that the proposed laws would not impact on women’s right to have an abortion and thus reassured were seeking to criminalise home birth mothers and/or their midwives. It seems ironic that the same people that defend a woman’s right to choose abortion deny her right to choose her place of birth.

Next into the debate predictably came the Right to Life Association that called for the proposed WA foetal homocide laws to be extended to criminalising abortion, and so it went on. As all the parties bickered over the bone of women’s rights versus foetal rights and most of the feminists remained eerily silent, as they often do when it comes to birth, the question we seem unable to ask  again is why would women take the “risk” of having a baby at home when they have significant risk factors? Do these women love their babies less or do they fear our health system more?