Note: Born (Not So) Free: Legal Limits on the Practice of Unassisted Childbirth or Freebirthing in the United States

By Anna Hickman. Full text here.

Unassisted childbirth, also known as “freebirthing”—in which a woman intentionally gives birth without the aid of a physician or midwife—is gaining increased media attention in the United States and abroad. Proponents of the practice boast of its beauty, safety, and legality. Yet, the legal framework of unassisted childbirth is unclear. No statutes forbid freebirthing explicitly, but some states have forced women to seek professional care at the end of pregnancy, and, moreover, some women have suffered legal consequences when their child was injured as a result of an unassisted labor. This Note analyzes two legal frameworks that apply to freebirthing: the state’s interest in the well-being of viable fetuses and a parent’s legal duty to provide medical care for children.

Ultimately, the state may prohibit freebirthing based on its compelling interest in the life of a viable fetus. Nonetheless, this Note argues that the state should not do so because such a prohibition would be impossible to enforce and would create an undesirable disincentive for freebirthers to seek prenatal care. It instead proposes that enforcement of the general parental duty to provide medical care to children is a preferable framework for addressing bad outcomes of planned unassisted births. The duty to provide medical care creates a positive incentive for freebirthers to seek both prenatal care and specific guidance on basic child birthing skills. Moreover, waiting until the child is born to criminalize the mother’s conduct avoids the unnecessary risk that a court will find the mother’s privacy and autonomy interests paramount to the state’s interest in a viable fetus.