The Birth of Death: Stillborn Birth Certificates and the Problem for Law,
100 Calif. L. Rev. 269
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 either score, this is no longer the case. Familiarity with 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 about just what is being certified in the name of the larger community. How has issuing birth certificates 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?
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 consider a more complicated story. 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.