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

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

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.



More in this Issue

Marriage Fraud

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in […]

Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties

Too often, popular political power-whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy-presents itself principally as a counterweight to the political power parties wield. Yet setting up “popular democracy” and “party democracy” in opposition to one another in the American political landscape is not only […]

Drinking Water and Exclusion: A Case Study from California’s Central Valley

The American West is notorious for its water wars, and California’s complex water allocation and governance challenges serve as a bellwether for contemporary water governance across western states. Policy makers and environmental advocates typically represent California’s water woes as a regulatory problem-a failure to balance the needs of growing urban populations with ecological preservation and […]

The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State

Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice,” jury trial rates (the prevalence of jury trials relative to bench trials) in American criminal adjudication actually vary dramatically by state. A sizable body of scholarship has generally explored the decrease […]

Rules, Principles, and the Competition to Enforce the Securities Law

Though the Securities and Exchange Commission (SEC) is the primary securities enforcer, multiple enforcers are active in enforcing the securities laws. Some scholars argue that enforcement should be centralized to eliminate or control enforcers with incentives to overenforce, while others contend that competition checks the SEC from a tendency to underenforce. The debate is characterized […]