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03/29/89 the People of the State of v. Margaret Jihan

March 29, 1989





537 N.E.2d 751, 127 Ill. 2d 379, 130 Ill. Dec. 422 1989.IL.429

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Jackson County, the Hon. Bill F. Green, Judge, presiding.


JUSTICE CLARK delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.


The question presented by this appeal is whether provisions of the now repealed Illinois Medical Practice Act (the Act) (Ill. Rev. Stat. 1985, ch. 111, par. 4401 et seq.), which prohibited the unlicensed practice of midwifery, were unconstitutionally vague under the due process clauses of the United States and Illinois Constitutions.

In 1986, appellee, Margaret Jihan, was convicted of practicing midwifery without a license in violation of the Act (the Act was not repealed until December 31, 1987) for the role she played in assisting Hanizah Hashim in the delivery of her baby. The only witness who testified at the trial was a Carbondale police officer to whom appellee had given a statement describing what had occurred at the birthing. The officer testified that, according to appellee, Hashim had originally planned on delivering her baby at a birthing center. However, when it became apparent that the center would not open in time for the birth, her doctor recommended that she contact appellee to assist her in delivering the baby at home. Hashim and her husband met appellee for the first time six to eight weeks before the birth. The purpose of the meeting "was for education and awareness of child birthing at home."

On May 16, 1985, Hashim telephoned appellee and told her that "her bag of waters had broke." Appellee then advised her of various methods of inducing labor including breast stimulation, long walks and hot showers. Appellee saw Hashim that day and again on May 17, when she spent most of the day and night at Hashim's apartment. During these visits, appellee observed the progress of Hashim's labor and monitored the child's heartbeat. Hashim's active labor began on the morning of May 18.

At about 7 o'clock on the evening of May 18, Hashim passed a bloody discharge in which meconium was present. Meconium is a fecal material which a fetus can ingest into its lungs, causing blocked airways. Meconium must be removed immediately after childbirth to allow the baby to breathe normally. The presence of the meconium indicated to appellee that a special delivery of the baby would be necessary, one that would require extensive suctioning of the baby to remove the meconium and possibly even resuscitation to revive the baby's breathing. Appellee suggested at this point that Hashim go to the hospital, but Hashim wanted to stay at home. Consequently, appellee continued to monitor Hashim, conducted an internal exam with a sterile glove, determined that Hashim was dilated eight centimeters, and checked the baby's heartbeat every 15 minutes with a stethoscope.

At about 10 o'clock that evening, Hashim began to deliver her baby. The baby's head was delivered first, and appellee saw meconium present and so wiped the baby's face and began suctioning the baby's nose with a rubber ball syringe. After the remainder of the baby was delivered, appellee continued suctioning and removing the meconium, began to massage the baby, placed the baby on top of the mother, and clamped and cut the umbilical cord. The baby had failed to breathe after birth. Appellee then instructed an assistant who was also present at the delivery to begin massaging Hashim's abdomen. Appellee also told the assistant to call an ambulance while appellee took the baby into the bathroom of the apartment and turned on the hot water to create steam. When the baby became unresponsive, appellee began administering cardiovascular pulmonary resuscitation, but could not get oxygen into the baby's lungs. Appellee then wrapped the baby in sterile blankets and took it out of the bathroom. Appellee then began massaging Hashim's abdomen because the assistant had failed to do so. When the ambulance arrived, appellee took the baby out to the ambulance crew and gave them a brief history of the birth. Appellee then returned to Hashim and continued massaging her abdomen. Seeing that the placenta had attached itself, thus requiring an emergency procedure, appellee called for another ambulance. While waiting for the ambulance to arrive, appellee assisted Hashim with her breathing and gave her a glass of cold tea with honey. The baby was taken by ambulance to a hospital, where it was pronounced dead on arrival.

In her statement to the police officer, appellee described herself as a "labor-coach and patient advocate." She explained that she charges two to five dollars per hour for her attendance at births. She also gave the officer a "Release" that she had Hashim and her husband sign. The release said, in part:

"We initiated the relationship with [appellee] and asked her to be present at the birth of our child as a midwife. We are fully aware that she is not a doctor or a nurse, and has no medical or nursing training, and agree that she is not representing that she can or will perform any tasks which require such training. We understand that her experiences are limited to having given birth three times herself and having attended a few other births as a lay midwife or as an assistant to a doctor.

We further realize that [appellee] does not have a license as a midwife, and that Illinois does not license midwives. We understand that [appellee] does not hold herself out to the public as a midwife, but is only agreeing to attend our birth because she feels she could be of help to us."

Appellee was charged by indictment with involuntary manslaughter and practicing midwifery without a license. (Ill. Rev. Stat. 1985, ch. 38, par. 9-3; Ill. Rev. Stat. 1985, ch. 111, pars. 4460, 4464.) The circuit court dismissed the manslaughter charge but convicted appellee of practicing midwifery without a license. Appellee was sentenced to one year of probation and, as a condition of probation, was ...

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