This essay has been excerpted and adapted from I’m Sorry for My Loss.
When former Vice President Mike Pence was governor of Indiana, well before a Supreme Court with three Donald Trump appointees had overturned Roe v. Wade, Pence signed HB 1337 into law. Among other things, it decreed that “a miscarried or aborted fetus must be interred or cremated.” The effects of this law—and others that have been adopted in other states—were far-reaching and now in a post-Roe landscape, they have taken on an even greater significance.
The idea behind this provision in HB 1337 in part was to force people who had abortions into thinking about the consequences. But the law also applies to people who never intended to end their pregnancies. It was challenged by three women who remained anonymous and went all the way up to the Supreme Court, which upheld the part of the state law that required clinics to bury or cremate remains.
“These laws … send the unmistakable message that someone who has had an abortion or miscarriage is responsible for the death of a person,” wrote the attorneys in the failed lawsuit. “As a result, they have caused many abortion and miscarriage patients … to experience shame, stigma, anguish, and anger.”
The attorneys also argued that the laws “coerce pregnant people who obtain abortion and miscarriage management care to engage in rituals that are associated with the death of a person.” This part is especially notable because, while we have a cultural script for what to do when someone dies, the state doesn’t mandate how we handle the funeral. And when we’re dealing with a liminal state of pregnancy and loss, everything gets more complicated because you’re not burying or cremating a fully grown human. In some cases, remains don’t resemble a baby at all. It’s impossible to know how you are going to feel in that moment when the situation happens to you.
The Indiana law raises another important question: What happens when you miscarry at home? Many people we spoke to said they passed tissue at home, in the toilet. Do you have to dig it out, seal it in a baggie, and send it to a hospital for burial? The usual instinct is to flush. It doesn’t mean that you’re not sad; it just means you don’t quite know what the hell to do. Could it compound the grief and trauma to have to then take those remains to be buried? Are you going to get arrested if you flush the toilet?
In Indiana, the law states that pregnant women can use the health care facilities’ final “method of disposition,” but they’re responsible for the costs if they choose their own location. The law also requires a certificate of stillbirth for nonlive births at 20 weeks gestation or later. If someone delivers or miscarries at a hospital, there are methods to dispose of remains already in place, usually mass graves.
State laws regarding fetal remains vary. Most hospitals offer to take care of the remains free of charge. Some incinerate the remains with medical waste like tumors or kidney stones, while others opt for unmarked mass burials at cemeteries, and sometimes parents can find out a general area if they wish to visit.
Most of the clinics where the parents we talked to terminated for medical reasons offered a lower cost option for cremains. Those who opt to bury or cremate on their own pay a funeral home. The median cost for a funeral and burial was $7,848 in 2021. Some funeral homes will waive or reduce the fee for a cremation or funeral for a miscarriage or stillborn, and nonprofits like the TEARS Foundation can help offset the costs, but none of this is guaranteed and puts the onus onto a bereaved family. Among the dozens of people we spoke to, the most important element in how to handle these decisions was choice—that they had an option to get remains or not, had the option to have a service or not. But the prohibitive costs and proscriptive laws sometimes mean there’s no choice at all.
The registrar of vital records in each state issues a “certificate of fetal death” or some type of legal record when a stillbirth happens. The National Center for Health Statistics tracks fetal deaths after 20 weeks, but it was only in 2018 that every state adopted a standardized report on deaths, which would make it easier to count them and derive any data on causes. Miscarriages are not counted in any tally. Abortions are.
Erica Bailey gave birth to a stillborn in Missouri, where abortion is now essentially banned. “My precious son who lived for 39-weeks, was not seen as a person in the eyes of the law. We did not receive a birth certificate, even though I still gave birth to his 7-pound 6-ounce body,” Bailey wrote on the website Motherwell. “We were not able to claim him as a tax dependent, even though we paid for all the same things in preparation for his arrival, in addition to the funeral, burial, headstone, and years of trauma therapy at $150/ hour. In the eyes of my very ‘pro-life’ state, he didn’t even exist.”
There is a paradox inherent in laws like this, people told us—they demand recognition that a fetus is a person deserving of a burial but don’t bestow that “personhood” onto stillbirths in a consistent way.
Joanne Cacciatore, founder of the MISS Foundation, an international nonprofit that serves families whose children have died, and a professor at Arizona State University who researches grief and the loss of a child, was instrumental in the passing of the so-called Missing Angels Act (not her phrase) in Arizona in 2001. In 1994 she gave birth to a baby, Cheyenne, whose heart stopped beating about 15 minutes before she was born. She got a death certificate in the mail, but she wanted a birth certificate. She gave birth, after all. But no such record existed. Cacciatore worked with a focus group of other bereaved parents to convince the state Legislature to make a change. In September 2001, the first birth certificate for a stillborn baby was issued in the United States.
The idea behind this, Cacciatore told us, was to honor the babies, to honor the parents who labored and delivered, and to align with the laws already in place that required stillborn babies to be buried or cremated.
Now 43 states issue some kind of memorial certificate of stillbirth or a certificate of birth resulting in stillbirth. These certificates are for the purposes of memorial only; they aren’t equivalent to a personhood law. But anti-abortion advocates seized on these laws as proof that life begins at conception. Cacciatore has been adamant that her movement isn’t about right to life; it’s about recognition and grief for people who lost a very wanted baby.
But the idea has spread to first-trimester losses, and not solely as a salve for a grieving person; it’s also used to further conservative arguments against abortion. Florida offers certificates to those whose pregnancies end after nine weeks but before 20 weeks. Idaho’s Unborn Infants Dignity Act does the same. Other efforts, like one in Wyoming in 2018 that would have required a mandatory “certificate of non-viability,” failed to pass.
The biggest critics of these efforts have been advocates seeking to safeguard abortion rights. Most major advocacy groups, like Planned Parenthood and the National Organization for Women, opposed this kind of legislation on the grounds it could create pathways for anti-abortion groups to pass more personhood laws and to further restrict abortion. For many loss parents, this too feels cruel.
Bureaucracy and emotions have never been easy bedfellows. To some extent, some of those fears have come to pass. Just look at where we are now.
