George and Toni were excited and grateful when they found out they were pregnant; both were in their 40s and long wanted to be parents. Like many expecting their first child, they’d already decorated the nursery and chosen a name for their son: George Jr.
Toni went into labor 37 weeks into her pregnancy. After reportedly ridiculing her request for a cesarean section and otherwise not giving his patient adequate attention, the doctor misused a vacuum extractor during delivery and crushed George Jr.’s skull. Toni delivered her son already dead ― stillborn, defined as the loss of pregnancy after 20 weeks but before birth.
The grieving parents sued their doctor. At a trial in Florida, the doctor objected to the language Toni and George used when describing their loss ― language like “our son,” “our child” and using George Jr.’s name. The child died before he was born, which allowed the doctor to argue that George Jr. was something less. That he was just a fetus.
If he’d been even a few minutes old when he died, no one would think to call Toni and George’s son a fetus.
The death of George Jr. is hardly an isolated incident. According to the Centers for Disease Control and Prevention, nearly 24,000 stillbirth deaths occurred in 2013 (the most recent national data available). Additional research suggests up to one-fourth of stillbirths could be prevented with proper medical care. If applying this research to the CDC’s 2013 data, that’s more than 6,000 children who would be turning 5 years old this year if medical professionals had performed appropriately.
George Jr.’s death had nothing to do with abortion. But it’s easy see how our country’s ongoing abortion debate influences legal cases involving stillbirth. For Toni and George, a baby died. For the doctor, a fetus was lost. Similarly, the anti-abortion faction argues that a baby dies, while the pro-abortion rights side argues it was merely a fetus (or less).
“Devaluing parents’ grief after stillbirth does not protect another woman’s abortion rights. All that minimizing stillbirth does is minimize stillbirth.”
This classification affects not just how individuals view and weigh in on abortion rights ― it also affects the outcome of lawsuits when parents experience negligent stillbirth. The compensatory damages parents receive are based on the amount and significance of their injury: If their child died, the couple experienced the worst injury parents can suffer, but if it was just a fetus, the injury amounts to much less.
The pro-abortion rights side is also concerned with equal legal recognition of wrongful deaths of unborn and living children. The worry is if the law recognizes that a child lost due to stillbirth is no different from the death of a living child, the law could give unborn babies inherent or legal personhood ― threatening the very legality of abortion.
Take former New Mexico Gov. Bill Richardson (D), for example, who once vetoed a widely supported bill that would have created stillbirth birth certificates. State laws mandate the issuance of a death certificate after stillbirth but not a birth certificate because, although the mother gave birth, the baby was already deceased. Some suspected Richardson vetoed the bill because he did not want to lose pro-abortion rights voters in his later run for president.
Abortion rights groups rationally ― and rightly ― fight against abortion limits, including bans on abortions after however many weeks of pregnancy and mandatory ultrasounds. But the fight against recognition of stillbirth feels a bit irrational. The Supreme Court in Roe v. Wade specifically recognized that a tort claim for parents after the death of an unborn child does not give the unborn baby any rights. It is the parents’ claim, not the unborn baby’s claim.
Grieving parents should be allowed a Certificate of Birth Resulting in Stillbirth ― proof of their child’s birth in addition to death. Many states have passed laws providing parents this recognition in the last 15 years. Downplaying the parent-unborn child affectional tie ― pretending that George’s parents lost something less than the child they’d longed for ― denies reality. Some parents very quickly develop a relationship with their unborn child; that’s always been true. It is even sometimes true in abortion ― women may choose abortion not because the child is undesired, but because of poor economic or health circumstances.
Women have the right to an abortion, and devaluing parents’ grief after stillbirth does not protect another woman’s abortion rights. All that minimizing stillbirth does is minimize stillbirth.
In Florida, the trial court ultimately allowed the couple to refer to George Jr. as their child and their son. The appellate court agreed, but said “fetus” would have been more “precise.”
Precision depends on context. After stillbirth, no grieving parent says, “We lost the fetus.” I know this firsthand, because my son Caleb died due to stillbirth. He was not a fetus. He was an almost 6-pound, 19-inch sweet and innocent baby boy. I hope no other parent ever loses a child like my husband and I did.
“After stillbirth, no grieving parent says, 'We lost the fetus.'”
One way to help prevent stillbirth, especially given the research on doctors’ ability to prevent some stillbirths, is through tort law. Tort law enables injured victims to sue their injurers for money damages based on that injury, just like George Jr.’s parents sued their doctor for causing their son’s stillbirth.
Tort law often gets a bad rap. You know the kind: greedy ambulance-chasing lawyers and undeserving people winning large damages. But very few lawyers and plaintiffs fit that stereotype. George Jr.’s parents certainly didn’t.
Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth, like George’s parents did. However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.
Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.
Jill Wieber Lens is an associate professor of law at the University of Arkansas (Fayetteville) School of Law, where she teaches torts, remedies and related subjects. Before joining the Arkansas faculty, she was a professor of law at Baylor University School of Law. The views expressed are those of the professor and do not reflect the opinions of the University of Arkansas or the School of Law.