After a 11-hour hearing on Monday the East Hertfordshire NHS Trust decided that written warnings to Valerie Foster and Gill Kruzin, who between them have 35 years experience, should stand.
The Royal College of Midwives called on Virginia Bottomley, the Secretary of State for Health, to rule that NHS trusts could not impose policies which countered midwives' professional responsibilities.
However, the trust said the issue 'was never about the appropriateness and availability of water births' but about the midwives' 'personal conduct' - indicating it believed they colluded in the underwater delivery against hospital policy. The Department of Health said Mrs Bottomley would not be getting involved.
Valerie Foster received a final warning and Gill Kruzin a first warning after 9lb 3oz Mollie was born in a birthing pool eight weeks ago to Valerie French, 35, a college lecturer, at her home in Sawbridgeworth, Hertfordshire.
Gill Kruzin, although off duty, joined Mrs Foster for the delivery, having read about water births and watched training videos. A third midwife is believed to have reported the birth to the hospital.
The trust's policy is to permit mothers to labour in water but not to deliver underwater, and Ms French had been told she would have to get out of the pool for delivery. At the crucial point she refused. 'The midwives could either have walked out, in which case I would have had a case for negligence,' Ms French has said, 'or hauled me out or stayed with me. In my opinion they took the only option possible.'
Yvonne Hewins, director of industrial relations for the RCM, said the decision was 'a miscarriage of justice. (It) makes a mockery of Government policy that women should have choice in childbirth . . . If a mother exercises her right to choose and then the trust disciplines the midwives, that is putting both mothers and midwives in an impossible position.'
Once the mother had refused to get out, the midwives would have risked being struck off if they had left. Emptying the pool, or dragging the mother out would have been unreasonable, put the child at risk and risked legal action, Mrs Hewins said.
The trust said it did not offer water delivery because its obstetricians believed it to be 'inadequately tried and tested'. Disciplinary action had been taken because, with no experience in water deliveries, the midwives undertook the procedure when 'specifically instructed not to do so' and after 'failing to seek advice'.
The Department of Health said it stood by the policy of choice, but water deliveries were of 'unproven benefit'. After contested reports last year that babies had died after water delivery, the department commissioned a safety study from the National Perinatal Epidemiology Unit at Oxford, which is due to report in November. 'It is a new area about which we do not know enough,' a spokesman said.