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Excerpted From: Jennifer C. Nash, Home Is Where the Birth Is: Race, Risk, and Labor During Covid-19, 32 Yale Journal of Law & Feminism 103 (2021) (128 Footnotes) (Full Document)


JenniferCNashOn April 28, 2020, Dr. W. Spencer McClelland--an obstetrician at New York City's Lenox Hill Hospital--published an editorial in The New York Times that announced, “If you planned on delivering in a New York City hospital, don't change your plans.” McClelland's plea was a response to an outpouring of news reports focused on pregnant people navigating a fundamentally changed medical landscape: COVID-19 had inaugurated new hospital rules barring birth partners and birth workers from delivery rooms and encouraging prenatal telemedicine described by one journalist as creating a “DIY pregnancy.” The Centers for Disease Control and Prevention (CDC) had even recommended that mothers with “confirmed or suspected COVID-19” be “temporarily” separated from their newborns, even as it affirmed that “the ideal setting for care of a healthy, term newborn while in the hospital is in the mother's room,” guidelines that were changed again by October 2020. McClelland was also responding to the particular crisis facing New York City as it struggled to “flatten the curve.” Namely, that the hospital--or what one journalist dubbed the “Covid hospital” to be associated with a dire lack of protective equipment, leaving frontline workers and patients dangerously vulnerable.

That same month, news outlets reported that midwives were swamped with requests for home births, the very birthing practice that had previously been associated with risk and danger. The founder of Black Breastfeeding Week, Kimberly Sears Allers, noted, “Women across the country are panic shopping doulas and midwives for home births and desperately calling birthing centers, overwhelming people and systems that are built on relationship-building during the pregnancy period, not last minute additions.” Hospitals, in turn, began to emphatically reassert their status as the safest place to deliver a baby. McClelland insisted, “While this is a world-shaking time, we will take the same care of you as we always have.”

In the very moment that McClelland penned an editorial promising that the hospital would extend “care” to perinatal patients, New York City was coming to terms with a widely circulated and deeply tragic story of a Black pregnant woman's death in the hospital. A few days before McClelland's editorial was published, Amber Rose Isaac died at Montefiore Medical Center in the Bronx. Her pregnancy had been marked by complications and by medical neglect. In fact, a few days before the emergency C-section which led to her death, she had tweeted: “Can't wait to write a tell all about my experience during my last two trimesters dealing with incompetent doctors at Montefiore.” Isaac's case--alongside Sha-Asia Washington's death at Woodhull Medical Center in Brooklyn in July and Cordielle Street's death in March after complications from her delivery--are a testimony to the racial maternal health disparities the New York City Department of Health had found. Black women in New York City were eight times more likely than white women to die from pregnancy-related causes. In a moment in which new legal, medical, and popular attention turned to Black maternal death in the hospital, how might we critically engage McClelland's insistence that the hospital can confer care and safety on its perinatal patients, particularly given the dual crises facing Black women--the reality of Black maternal mortality and the pandemic's disproportionate deadly effects on Black communities?

This Article explores a temporal window--the rapid spread of COVID-19 in the United States in the spring of 2020--when cultural ideas about risk, pregnancy, institutionalized medicine, and race changed dramatically, most visibly, I argue, around home birth, and where those cultural shifts collided with the legal status of home birth and midwifery. By describing a dramatic cultural shift in the conception of home birth, I refer to the ubiquitous, popular representation of the birthing practice in mainstream media as a reasonable and even responsible maternal response to COVID-19's threat and to the association of the hospital with threat and even death. In mapping the swift transformation of home birth from a sign of risk to a symbol of parental responsibility, this Article focuses on the complex racial politics that have swirled around home birth. In particular, I bring a Black feminist lens to bear on home birth, probing how reproductive justice advocates have long adopted a view of the hospital as a site of death for Black women and their children and promoted home birth as a viable and even life-saving practice for Black mothers. These advocates, such as Demetra Seriki (the only Black home birth midwife in Colorado), emphasize that “[e]very time you walk into a hospital as a black woman to give birth, you're rolling the dice.”

The last five years have been marked by sustained popular and political attention to what Linda Villarosa termed the “life or death crisis” facing Black mothers and children:

Black infants in America are now more than twice as likely to die as white infants--11.3 per 1,000 black babies, compared with 4.9 per 1,000 white babies, according to the most recent government data--a racial disparity that is actually wider than in 1850, 15 years before the end of slavery, when most black women were considered chattel. In one year, that racial gap adds up to more than 4,000 lost black babies.

This journalistic outpouring has had myriad results including new legislative attention to Black maternal health (albeit with little change in Black maternal health outcomes), the new visibility of Black birth-workers as life-saving bodyguards, and a new attention to the possibility of assisted home birth as a way of circumventing the deathly territory of the hospital. Yet the Black feminist advocacy of home birth that emerges from this perspective--one that sees the hospital as a death world for Black mothers and children and the home as a refuge from medical racism--has not shaped or informed popular, journalistic, or even public health conversations about the popularization of home birth during COVID-19.

In this Article, I explore the racialized, gendered, and classed caste system law and medicine have collaboratively established. The caste system that stratifies midwives--much like the caste system that marks other forms of birth-work--has made possible home birth's new association with risk mitigation and good mothering during COVID-19. This same caste system has made it impossible for Black women to successfully argue for the necessity of home birth as they face the death world of the hospital in the years (and even decades) before COVID-19. I trace how the risk imagined inherent to home birth pre-COVID-19 is a risk imagined to attach to midwives, and how midwifery is governed by an intense legal classification system that champions and protects midwives who are most medicalized and most able to access formal credentials and leaves exposed and vulnerable (and deems risky) those most outside conventional medicine. My impulse here is not to advocate for home birthing as the solution to the problems of the present, but instead to think carefully about the racial logics that undergird the conditions of the present and to examine the challenges the present moment poses for feminist legal theory and practice. My analysis departs from scholarly work that emphasizes that the problem of the present can be solved through the licensure of non-nurse midwives or through increased legal regulation and recognition of the profession. Instead, I seek to show how even a form of birthing often hailed as feminist, as outside of the patriarchal strictures of the hospital, is marked by its own racial and class hierarchies entrenched by the law's mandates of credentialization and certification. It was only when this seemingly outsider form of birthing could be harnessed to satisfy neoliberal mandates of individual commitment to risk mitigation that home birthing could be reimagined not as risky but as responsible, not as dangerous but as desirable.

This Article unfolds in three parts. First, I argue that the contemporary U.S. birth landscape has been rewritten by COVID-19, which has remade home birth into a responsible perinatal practice by making the task of “staying healthy” one that belongs to individual perinatal citizens rather than to the state. Second, I argue that this labor has happened through a fundamental resignification of the home as territory that is not domestic or private, but instead committed to risk mitigation. This vision of the home as office, school, and delivery room--as spaces where we “shelter in place” for our safety--hinges on the physical space and comfort of the home, on a vision of plentitude available only to certain citizens. Yet, I argue this presumption of home as the antithesis of death, as a place where we stay to avoid illness, has largely circulated as a result of COVID-19 and the uncertainty and precarity it has generated, rather than the longstanding Black feminist critiques of home as the opposite of the hospital, home as a refuge from obstetric violence and medical racism. Finally, I trace how the risk imagined inherent to home birth pre-COVID-19 has been a risk imagined to attach to midwives. Midwifery is governed by an intense legal classification system that champions and protects midwives who are most medicalized and most able to access formal credentials, and leaves exposed and vulnerable (and deems risky) those most outside conventional medicine, those most tethered to birthing in spaces outside of the hospital, often precisely because of their sense that the hospital is not safe. I trace how law has left wholly unprotected midwives who champion home birth as a practice of bodily integrity and safety, or even of racial justice.

[. . .]

Ultimately, this Article is not a call to romanticize home birth or midwives, but instead to think about the conditions that allowed a form of birth--long advocated for by Black women to escape the death world of the hospital--to become reimagined as a practice that enables all parents to perform their responsible citizenship or to manage the seemingly endless risks that COVID-19 poses. Indeed, it is crucial to note that the hospital only became more broadly visible as a death world during COVID-19, despite sustained attention to racial maternal health inequities and the particularly profound role of institutionalized medicine in producing those inequities. As home birth becomes increasingly visible and even celebrated through the language of “consumer choice,” feminists might harness this moment to continue to probe how feminist spaces--like midwifery--become structured by logics of credentialization, licensure, and education that are described as promoting safety but that actually fundamentally shape access--both access to midwives and midwives' access to practicing midwifery. We must then continue to interrogate credentials for feminist birth workers, not with an eye toward compromising safety, but with attention to dismantling hierarchies and stratifications that work to the disadvantage of women-of-color midwives and to women-of-color birthers. These women's bodies, needs, and wishes have largely been shut out of COVID-19 conversations about home birth, despite the conditions of their ordinary lives, which were structured by the bleak realities of Black maternal and infant mortality long before COVID-19.

Jean Fox O'Barr Professor of Gender, Sexuality, and Feminist Studies at Duke University.

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