The Case for Traditional Birth Attendants in Texas
The Homestead Heritage church community believes their religious and cultural custom of home birth attended by volunteer traditional birth attendants to be well within the spirit and intent of Texas law and the U.S. Constitution.
A “traditional birth attendant” refers to a trained and experienced caregiver who assists a woman in the pregnancy and birth process but who does not advertise as a licensed professional midwife and does not receive compensation for their services. Though current Texas code doesn’t specifically address this custom, multiple attorneys, medical professionals and a TDLR advisor have all advised Heritage that the interplay of the following factors point to its legitimacy in their case:
First Amendment Right to Religious Expression
Since 1979, birthing at home attended by volunteer members of their faith community has been integral to the Heritage community’s spiritual culture and should be protected as a religious freedom. They see birth as inherently sacred. Jesus chose birth as the ultimate symbol of regeneration and salvation (John 3:3). Birth is not only a blessing from the Lord but also God’s gracious means of sustaining life on an earth “subjected to futility” and “groaning in the pains of childbirth” under the curse of sin (Romans 8:20-22). Birth is the fruition of humanity’s most sacred bond—marital intimacy between husband and wife, as Scripture tells us that “Adam knew his wife, and she conceived and bore Cain” (Genesis 4:1). Thus, for members of Homestead Heritage, natural birth is one of life’s most sacred and spiritual experiences, not to be unnecessarily medicalized or State supervised.
Historical Precedent
Texas law specifically acknowledges historical precedent as a guide for the midwifery code, stating that “midwifery has been practiced in this state since the days of the Republic” (Sec. 203.003 (3)). An article published on the Texas State Historical Association website recounts that “as late as 1900, more than half of all births in Texas were attended by midwives. In 1924, a State Bureau of Child Hygiene survey estimated that at least 4,000 midwives were practicing in Texas.”
According to a 2016 academic study on the effects of occupational licensing, as of 1916, “Texas required that midwives be of ‘good moral character’ and graduates of a ‘bona fide, reputable’ medical school”—yet, in a key precedent, “the law did ‘not apply to those who do not follow obstetrics as a profession, and who do not advertise themselves as obstetricians or midwives.’” In other words, traditional birth attendants were specifically exempted from licensing requirements in Texas.
This entire code was dropped as obsolete a few years later, and lay midwifery was not regulated in any form in Texas until 1983. Traditional birth attendants had already been serving within the Heritage church community for several years before that.
Parental Rights
Texas midwifery code states that “a parent has the responsibility and right to give birth where and with whom the parent chooses” (Sec. 203.003(1)). This clearly includes the choice to birth at home with an unlicensed, traditional birth attendant. Legally restricting unlicensed birth attendants would infringe on this parental right.
Distinction from Medical Practice
Current Texas midwifery code recognizes that “childbirth is a natural process of the human body and not a disease” (Sec. 203.003(2)). Therefore, assisting a woman in normal childbirth is not a medical practice and should not be regulated as such.
For nearly 70 years, Texas case history has also consistently supported the distinction between midwifery and pathological medical disciplines. In a 2020 legal opinion requested by Heritage, their counsel made the following statement:
“The Texas court of criminal appeals has specifically held that midwifery is not the practice of medicine, and therefore unlicensed practitioners of midwifery are not criminally liable for the unlawful practice of medicine. In Banti v. Texas, the Court stated: “We agree that childbirth is a normal function of womanhood, and that proof that appellant for a consideration agreed to and did attend Julia Valdez at childbirth does not support the allegation of the [criminal] complaint and information that she treated or offered to treat Julia Valdez for a disease, disorder, deformity, or injury or effect a cure thereof. Not only has the Legislature failed to include within the definition of ‘practicing medicine’ the branch of medical science which has to do with the care of women during pregnancy and parturition called ‘obstetrics’ but has in a number of statutes recognized obstetrics or midwifery as outside the realm of the medical practice act.” (163 Tex. Crim. 89, 92-93 (1956))
Due to its legal distinction from medical practice, there is currently no criminal or civil violation attached to practicing midwifery without a license in Texas—it’s classified as a regulatory violation. But, in any case, this also would not apply to traditional birth attendants.
Definition of “Practicing”
Texas midwifery code only requires state licensure for a person who “practices midwifery.” The term “practicing” is unfortunately not immediately defined within the Texas Health Professions chapter on midwives—an ambiguity Heritage’s legal counsel believes should be amended. So its definition must be clarified by precedent in other sections.
In Texas law, the “practice” of a profession hinges on two key factors: charging for services and publicly claiming to be a professional. This applies across various professions—compensation is what primarily defines the activity as professional. This is true for physicians, licensed marriage and family therapists, massage therapists, embalmers, funeral directors, podiatrists, professional counselors, perfusionists and so forth.
For example, Texas law defines “practicing medicine” as medical services performed “by a person who:
(A) publicly professes to be a physician or surgeon; or
(B) directly or indirectly charges money or other compensation for those services” (Texas Occ. Code §Sec. 151.002(13)).
So the critical distinction is that “practicing” a profession doesn’t simply mean performing the actions involved—it means doing so in a professional capacity for compensation. For example, giving someone a back rub doesn’t violate massage therapy regulations—only operating an unlicensed massage practice for compensation does.
Likewise, in some situations, physician assistants and other volunteer health practitioners are exempt from certain legal requirements when providing services for free. However, the moment they accept any payment, those exemptions no longer apply (Tex. Occ. Code § 204.2045(a-1) and Tex. Occ. Code § 115.002(15)).
In a case relevant to midwifery, the Texas Attorney General ruled that a husband who assisted in delivering his own child without compensation—and who didn’t claim to be a doctor or provide medical treatment—was not in violation of the law (1962 Tex. Op. Att’y Gen. W-1278). Importantly, his exemption was not due to his familial relationship to the mother, but because he neither claimed to be a physician nor received any compensation for his role.
This definition of what constitutes “practicing” a health profession also perfectly corresponds with historical Texas legal precedent (cited above) for exempting traditional birth attendants from licensing requirements, as, again, they do not “publicly profess” to be a professional midwife or “charge money or other compensation for those services”.
Respect for Licensing
Heritage in no way denies that the state of Texas has a legitimate interest in regulating those who practice midwifery for the general population, who advertise for these services, and who charge for these services. A consumer paying for professional midwifery services deserves this protection. But again, volunteer traditional birth attendants operating solely within a faith community present a very different circumstance than what is appropriately regulated by the Texas midwifery code.
Education and Standard of Care
At Homestead Heritage, the belief that state licensure should not be imposed on traditional birth attendants in no way corresponds to a disdain for appropriate education in the art of midwifery. Birth attendants within the church community are committed to the highest standard of care and education. Their leading birth attendant and midwifery instructor is certified as a preceptor with NARM (North American Registered Midwives). This organization sets the educational criteria for midwifery licensing in the majority of U.S. states, including Texas. In the event of pathology, the community’s medical support team includes physicians (Family practice and OB-GYN), RNs, paramedics, EMTs and more. Collaboration with world-class healthcare facilities and professionals in nearby Waco and Temple provides additional safety and support for any complication.
Precedent in Other States
The important distinction between a professional midwife and a “traditional birth attendant” is not unique to Heritage but is firmly rooted in the legal language and tradition of this country. Several U.S. states have statutes explicitly recognizing the legitimacy of traditional birth attendants, particularly those who operate within a faith community.
For example, the Maine midwifery code makes clear that “nothing in this subchapter may be construed as preventing . . . a traditional birth attendant from practicing midwifery without a license if the traditional birth attendant has cultural or religious traditions that have historically included the attendance of traditional birth attendants at births and that birth attendant serves only the women and families in that distinct cultural or religious group” (32 ME Rev State § 12532(3)).
Idaho makes a similar exemption from midwifery licensing requirements for “a person, in good faith, engaged in the practice of the religious tenets of any church or religious act where no fee is contemplated, charged, or received” (ID Code § 54-5507(3)).
Oregon code states that “a person may practice direct entry midwifery in this state without a license to practice direct entry midwifery if: (A) The person is acting as a traditional midwife and does not use legend drugs or devices, the use of which requires a license under the laws of this state; (B) The person does not advertise that the person is a midwife; and (C) The person discloses to each client” that they are not a licensed professional and what that entails (OR Rev State § 687.415(2)).
Utah statutes are even more accommodating: “(a) Except for conduct that constitutes unlawful conduct under subsection (1), it is lawful to practice direct entry midwifery in the state without being licensed under this chapter. (b) The practice of direct entry midwifery is not considered the practice of medicine, nursing, or nurse midwifery” (UT Code § 58-77-501(2)).
In Ohio, members of a religious group may even operate their own unlicensed “exempt freestanding birthing center” provided that the birthing center will “admit, retain, and provide care exclusively to women members of the religious denomination, sect, or group that owns and operates the center who anticipate a low-risk pregnancy, low-risk delivery and normal full-term spontaneous vaginal birth, and to their newborns” (Ohio Rev Code § 3701.83.57(A)(1)).
Exempt centers may admit, retain, and provide care exclusively to women members of the religious denomination, sect, or group that owns and operates the center who anticipate a low-risk pregnancy, low-risk delivery and normal full-term spontaneous vaginal birth, and to their newborns.
Missouri at least allows “any person who holds current ministerial or tocological certification by an organization accredited by the National Organization for Competency Assurance (NOCA),” such as NARM, to provide midwifery services without licensure (MO Rev Stat § 376.1753).
Numerous other states simply do not regulate lay midwifery at all.
Conclusion
During 45 years of voluntary service to parishioners and in cooperation with local medical professionals, the traditional birth attendants within the Heritage community have never been charged with a crime nor even with a regulatory violation. Homestead Heritage and its members have operated in good faith, with dedication to continuing education and excellence of care. They believe their religious and cultural tradition of home birth attended by traditional birth attendants within their faith community is in keeping with historical legal precedent and the spirit and intent of existing Texas law.
However, for the first time in 45 years, the legality of their home birth tradition has now been publicly challenged in the media (though not in the courts) by two former members. Therefore Homestead Heritage is pursuing an appeal to the legal system for clarification and support. They look forward to the day when their rights are more specifically recognized by the state of Texas, as they are in many other U.S. states.