08 July 2015


'The Birth of Death: Stillborn Birth Certificates and the Problem for Law' by Carol Sanger in (2012) 1(6) California Law Review states
Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on eitherscore, this is no longer the case. Familiaritywith fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law. Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures nationwide to issue stillborn birth certificates under newly enacted "Missing Angel Acts." These Acts raise a perplexing set of questions. While acknowledging the desire of grieving parents to have some form of recognition for their children, it is important to think carefully aboutjust what is being certified in the name of the largercommunity. How has issuing birth certicates to babies who never lived come to seem a reasonable rather than an eccentric legislative gesture? And importantly,do stillborn birth certificates have implications for other areas of law involving prenatal death,particularly the regulation of abortion?
Sanger comments
This Essay discusses the history, meaning, and politics of stillborn birth certificates. Recognizing that Missing Angel Acts may seem a compassionate and seemingly harmless use of law, I want to considera more complicatedstory. Law's relationship to mourning practices in the difficult circumstances of stillbirth raises important issues concerning the effective authority of law, the use of legal fictions in modern identity documentation,and the desirability of lines between private and public responses to death.
The delivery of a stillborn child is a confounding event. Stillbirth is a devastating obstetric outcome-a reproductive moment that at once combines birth and death. The term "stillborn" refers to a child who "issues forth" from its mother after twenty weeks of pregnancy, but who has already died in utero or during the birthing process.' In other languages this juxtaposition of life and death is met head-on: the child is not stillborn but "born dead": nacido muerto, totgeboren,or mort-ne. In English, the softer term is used. It suggests that the newborn may simply be still and that there is yet time to discern whether or not it is dead.
Of course, many women who deliver stillborn children today, at least under systems of advanced health care, know before labor begins that the baby is already dead and they deliver with this knowledge. In such cases, birth is a grim experience as the traditional expectations of a newborn's cry are met instead with silence. Stillbirth is, as poet Seamus Heaney has written, "[the] [b]irth of death."
This Essay discusses the complications of this simultaneity - the birth of death - as a social experience and as a matter of law. To be sure, for most of Western history, stillbirth has not counted for much on either score. The birth of a stillborn child was regarded as an event of little official moment and to which traditional mourning practices rarely attached. A baby was either born alive - and thereby a person for purposes of family lineage and descent - or it was not. Over time, however, stillbirth has become a more noteworthy phenol- menon, increasingly recognized as a fitting occasion for the public expression of grief and for the ceremonial solemnity that attends any other death.
Law's relation to stillbirth has also changed over time. Early legal concerns were largely criminological: might an unmarried woman's claim of stillbirth be masking an infanticide? In the late nineteenth century, demographic interests also emerged, as the state's investment in the composition and well-being of its citizenry, particularly its children, took firmer hold. Public health concerns regarding infant mortality drew attention to stillbirth, which by the mid-twentieth century had been formally recognized as a discrete category of death, recorded among other vital statistics collected by the state.
Such criminological, demographic, and public health interests in stillbirth continue. Stillbirth remains a common defense in modern infanticide prosecutions, and there are on-going efforts to improve stillbirth data collection, particularly in developing countries. But, in addition to these traditional concerns, in the last decade the law has also taken a novel and somewhat therapeutic turn.
In response to lobbying efforts by bereaved parents dissatisfied with the issuance of a stillborn death certificate, well over half the states now issue stillborn birth certificates under newly enacted "Missing Angel Acts." These are laws that authorize parents to request, and require the state to provide, a birth certificate for a stillborn child. The certificates do not replace but are issued in addition to fetal death certificates, which remain compulsory. Stillborn birth certificates are not issued automatically but only upon application by a parent. Arizona passed the first such statute in 2001 and thirty states have since followed suit.
Missing Angel Acts raise a set of perplexing questions about the meaning and status of stillbirth as a social matter, as the subject of legal regulation, and about the interplay between the two categories. How is it that a child who has never taken a breath has come to be understood as a proper subject for a birth certificate in early twenty-first-century America? Why has the movement toward greater recognition of stillboms focused specially on the documentation of birth? And what is the relationship between private or familial responses to stillbirth and public or state responses? The two are surely related, for the transformation of stillborn infants into accepted subjects of private mourning has led to the demand that they also count in the official record-not merely for statistical purposes, but as beings worthy of individual recognition through that traditional marker of arrival, the birth certificate.
In this Essay, I uncover and parse some of the complexities in the relationship between private grief and public recognition in the case of stillbirth. To locate the subject generally within the structures of law and family, I begin in Part I with a brief history of the social and legal practices around stillbirth. I trace how over time stillbirth has become a category for both affective concern and public recognition. I then look at how Missing Angel Acts came into being: their background in public advocacy and how such legislation was developed, drafted, and advanced.
The widespread enactment of Missing Angel Acts also prompts a prior and more philosophical question. How is it that authorizing birth certificates for children who have never lived has come to seem a reasonable rather than an eccentric legislative gesture? Part of the answer is surely compassion toward grieving parents, a compassion that originates, at least in part, from shared understandings about the baby-like status of a stillborn infant. Part II explores the technological and social origins of these understandings, which derive from now familiar attitudes in the United States regarding the vitality and personability of the fetus. Many readers will be familiar with the idea that, in wanted pregnancies, social birth now frequently precedes biological birth.
With this phenomenon in mind, how should we think about stillborn birth certificates? What does the certificate mean? Part III suggests several ways to think about this: the stillborn birth certificate as an artifact of mourning, as documentary proof of the baby's existence, or as an aspect of parental identity. Another possibility is that the certificate operates like a posthumous change in status, bracketing the question of whether one who has not lived can receive something posthumously. These characterizations attempt to clarify what parents seek from this form of documentation and the apparent ability of law to provide special consolation.
Yet accepting that Missing Angel Acts may provide meaning and solace for grieving parents may not tell us quite enough. For whatever the merits of the legislation, there is also something unsettling upon first hearing about birth certificates for stillborn children. The sympathetic response may simply be to acquiesce and accept Missing Angel Acts as somewhat peculiar, but at core essentially harmless and possibly beneficial. But before we do that, it is worth investigating the origins or causes of our instinctive uneasiness.
Doing so is not easy. Putting anything into the balance against the exigencies of parental grief may suggest a cold indifference to suffering. That is not the case here. I proceed in my analysis ever mindful of the utter calamity of stillbirth for the parents of a stillborn baby. It is, as novelist Elizabeth McCracken states in her generous memoir of stillbirth, "the worst thing in the world." There is immediate recognition and sympathy for this shattering form of loss and for the desire of some grieving parents to have their baby's exis- tence acknowledged through the mechanism of a birth certificate. At the same time, a birth certificate is an official document that carries the imprimatur of the state. It is therefore important to understand just what is being certified by the state in the name of the larger community when a stillborn birth certificate is issued, and what the implications of this empathic use of law may be.
Part IV addresses five specific concerns. The first considers the nature of a stillborn birth certificate. What exactly does it certify? To what extent might stillborn birth certificates be rightly regarded as a form of legal fiction? What function does the fiction serve, and why must it be legal? What is the special role of law in all this? To answer these questions, I turn to other instances where a person's status is adjusted after death and other cases where a birth certificate is used to capture social, rather than biological, reality.
The second concern regards the therapeutic use of law in the context of stillbirth. Should the law be used to make grieving citizens feel better or are such gestures toward law's affective potential a misstep? And if a misstep, what is the nature of the harm, in light of the declared benefit of the certificates? To think this through, I compare stillborn birth certificates with another legal intervention urged and defended as a mechanism for providing solace: victim impact statements offered up in capital trials by the families of murder victims.
The third concern is the matter of what I call "compulsory reproductive mourning." What are the prescriptive implications of stillborn certificates? By providing for their official issuance, is the state implicitly endorsing one, intensely personal response to this form of familial tragedy and discrediting others? Do stillborn birth certificates not only reflect but shape norms about what to feel and how to value certain lives and relationships?
Fourth, the certificates raise questions about demographic integrity. What are their implications for population figures, for mortality statistics, and for other key demographic indicia?
The fifth and final concern may already have occurred to readers. This is the connection between stillborn birth certificates and the regulation of abortion. To many, the two issues seem obviously and perhaps inevitably linked. Indeed, I am one of the many. In a culture where great effort has gone into securing attributes of personhood for fetuses, stillborn birth certificates may seem like the latest legislative innovation equating unborn life with born life as part of the ongoing political campaign against legal abortion. Despite the compelling appeals by parents, one cannot help but notice the implications of Missing Angel Acts for how we think about other forms of fetal death.
Yet concerns about abortion-whether ideological, political, or strategic-should not overwhelm an analysis of Missing Angels Acts. Stillborn birth certificates have much to say about the nature and purpose of modem identity documentation, about the affective authority of law, and about the relation between private and public responses to death. I want therefore to consider the significance of these matters in their own right, putting the matter of abortion to the side for the moment. Only in the Essay's final section will I return to the connections between stillborn birth certificates and the political culture that now surround abortion. There I pay particular attention to the work done by the rhetoric of birth. Investigating law's relationship to social practices in the difficult circumstances of stillbirth sheds some light on the use and meaning of the word "birth" in twenty-first-century America, and what the effects of this new category of recognition might be.