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Counting Stillbirths

Jill Wieber Lens

Vol. 56

December 2022

Page 525

Stillbirths — pregnancy losses after 20 weeks of pregnancy but before birth — are interfering with the right to have and parent a child, a centerpiece of the reproductive justice movement. And this interference is disproportionately affecting marginalized persons, as Black women and poor women face double the risk of stillbirth compared to white women and those with higher socioeconomic status, respectively.

Hampering our ability to prevent stillbirths is our data systems. Currently, we count stillbirths in the United States via state-issued fetal death certificates (“FDCs”). Studies, however, demonstrate that FDCs are underreporting stillbirths, especially early stillbirths, which Black women face triple the risk of. Studies also show that FDCs commonly lack data and contain inaccurate data.

This Article argues for legal reforms to make stillbirths count. The first is to legally routinize fetal autopsies, modeled after state laws’ routinization of autopsies after suspected Sudden Infant Death Syndrome deaths. The second reform is to create stillbirth public health surveillance registries. Surveillance registries, which commonly exist for illness and injuries, will better ensure complete and accurate data. Improved data and data collection means effective epidemiological studies and proper public health prioritization of stillbirth.

The Article also necessarily addresses the increasing criminalization of stillbirth and the possibility that registries would contribute to this disturbing response pursued most often against marginalized women and persons. The answer is not to avoid research, but instead to legislatively protect the data and otherwise prevent the prosecutions. These prosecutions are counterproductive as they deter pregnant people from seeking prenatal care — which will increase stillbirths. They are also cruel. Stillbirth already involves the natural punishments of your child’s death and childbirth of that child. Prosecutions will reinforce self-blame and further traumatize those prosecuted, who are also likely to lack access to mental health care.

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