'The Birth of Death': Stillborn Birth Certificates and the Problem for Law

Abstract

Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Article discusses the complications of this simultaneity as a social experience and as a matter of law. Traditionally, stillbirth didn’t count for much on either score. Legally, a dead infant was nothing for purposes of descent; culturally, stillbirths were regarded as insignificant; after all, what was lost? This is no longer the case. Familiarity with fetal life through obstetric ultrasound throughout pregnancy has transformed stillborn children into participating members of their families long before birth. This in turn has led to a novel demand on law.

Dissatisfied with the issuance of a stillborn death certificate, bereaved parents have successfully lobbied state legislatures nationwide to issue stillborn birth certificates under newly enacted "Missing Angel Acts." Missing Angel Acts raise a perplexing set of questions. Acknowledging the desire of grieving parents to have their child acknowledged, just what is being certified in the name of the larger community? How is it that issuing birth certificates to babies who never lived has come to seem a reasonable rather than an eccentric legislative gesture?

This Article discusses the history, meaning, and politics of stillborn birth certificates. Recognizing that Missing Angel Acts may seem a harmless and compassionate use of law, I tell a more complicated story. Investigating law’s relationship to social practices in the difficult circumstances of stillbirth raises important and unnoticed issues concerning modern identity documentation, the affective authority of law, and the civic desirability of lines between private and public responses to death. The Article explores whether the certificates are an acceptable form of legal fiction and what their implications are for other areas of law involving prenatal death, particular the regulation of abortion.

Keywords: birth, death, stillbirth, stillborn death certificate, Missing Angel Acts, identity documentation, affective authority of law, prenatal death, abortion law