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In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth.  More recently, however, the social anxiety around these topics has receded.  Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of IVF.  Indeed, some find it cathartic to broadcast their grief to a wider audience, blogging about their experiences or discussing it with friends (broadly defined) on social media.  But it is one thing to enlist friends and social media in the grieving process.  It is quite another thing to involve the state.  Or is it?

That is the question that Carol Sanger takes on in “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law.  In this penetrating and thought-provoking Essay, Sanger takes on the taboo subject of stillbirth—the act of delivering a dead child—and the emergent movement that seeks to enlist law to help the parents of stillborn children deal with their grief and loss.  Specifically, Sanger considers “Missing Angel” legislation—laws that authorize the state to issue parents a birth certificate for a stillborn child.  The whole thing sounds at once macabre and incongruent—issuing a birth certificate for a child that was born dead?  But, as Sanger observes, it makes perfect sense to grieving parents, for whom the standard issue fetal death certificate fails to capture the magnitude and profundity of their loss.

In order to understand the nature of the loss, Sanger explains, one must understand the transformation of pregnancy and childbirth in our culture.  Medical technology has “permanently altered our relationship to the fetus.”  In particular, obstetric sonography “has made fetuses present” in the lives of their families “in ways that once were possible only after the baby was born.”  This process, which Sanger terms “social birth,” now precedes biological birth.  And it is the fact of social birth that makes stillbirth—and the standard legal response to it—so confounding to grieving parents.  A fetal death certificate seems to many parents of stillborn children “an offensive and bureaucratic response to their circumstances and suffering.”  It denies for many the basic fact that there was a pregnancy, labor, and the delivery of an actual baby, rather than a fetus.  In short, it is a clinical response that fails to capture the complexity of the parent-child relationship in utero, and in failing to grasp the nature of this relationship, compounds the parents’ grief.

Stepping in to supplant the fetal death certificate (and all of its inadequacies) are Missing Angels Acts, which authorize states to issue stillborn birth certificates.  The difference in nomenclature may be mere semantics to some, but for grieving parents it is deeply meaningful.  As Sanger observes, the certificates are at once an artifact of mourning, a public record that provides “dignity and validation” and a posthumous change of status to the lost child, and a means of confirming parental identity.  Sanger is quick to note that stillborn birth certificates, unlike other forms of public records, do not confer a tangible benefit or right upon the surviving family members.  Their purpose is primarily therapeutic—“a hug from [the state] for grieving mothers.”

It all seems pretty innocuous.  If a stillborn birth certificate offers some solace to grieving parents, what is the harm?  Sanger does not disavow Missing Angel Acts and their aim to push the state into a more compassionate and therapeutic posture, but she does urge us to think critically about what this development might mean for legal culture.  As an initial matter, Sanger notes that stillborn birth certificates are something of a legal fiction—and one that may compromise demographic integrity if unchecked.  But her concerns go beyond the integrity of public record-keeping.  Stillborn birth certificates, like victim impact statements, take seriously law’s affective and therapeutic potential.  And, as Sanger’s account of those who lobby for Missing Angels Acts suggests, this potential is real and meaningful—law can “soothe the emotional needs of a distressed constituency.”  But Sanger worries about the collateral consequences of this therapeutic turn.  Legal recognition, she notes, is a tricky business.  In recognizing the pain of stillbirth, does law prioritize this form of fetal loss above others like miscarriage, elective abortion, or the destruction of unused embryos?  Should these other forms of fetal loss be documented, and the grief with which they are associated recognized, by the state?  How do we determine the “appropriate scope of legal compassion?”

Importantly, Sanger’s critique of the promise and perils of public recognition has implications that extend beyond the narrow context of stillbirth and fetal loss.  For example, scholars of marriage and sexuality have frequently noted the degree to which legal recognition turns on exclusivity—for recognition to mean something, there must be an other that goes unrecognized.  With this in mind, Sanger’s point that the recognition of stillbirths prioritizes some forms of fetal loss over others echoes concerns that many have over the question of legal recognition of same-sex couples through marriage and alternative statuses.  Relatedly, her observations regarding the stillbirth birth certificate’s ability to provide dignity and validation sound in the same register as appeals for marriage equality that evoke the marriage license’s ability to dignify and validate same-sex relationships.  In the context of the marriage equality debate, most have accepted unquestioningly law’s ability to confer this kind of dignity and validation.  But Sanger’s nuanced reading of Missing Angels Acts belie such a facile conclusion.

Relatedly, Sanger worries that Missing Angels Acts allow the state to promote a kind of compulsory reproductive mourning that shapes emotional responses in ways both miniscule and profound.   She argues that, in providing a legal imprimatur for stillbirth mourning, Missing Angels Acts “define stillbirth as a particular kind of event and suggest what suffering mothers of stillborn children need (or are supposed to need) and how they can get it.”  Though private gestures like a doctor referring a grieving parent to a support group, effectively do the same thing, there is something distinctive about the state taking on this role.  The tension between the public and private that Sanger identifies in the context of stillbirths also applies in the marriage equality debate.  Though the mainstream LGBT rights movement has pressed for public recognition through marriage, others have argued that the state’s role in recognizing marriage contributes to a normative preference that renders marriage more or less compulsory for all who are eligible for it.  They argue that the state should take no role in recognizing adult intimate relationships at all, relying instead on private ordering for legal recognition.  This is not to say that The Birth of Death provides a platform for those who would reject marriage equality.  But the comparison between marriage equality and the stillborn birth certificate underscores Sanger’s point that the politics of public recognition—whatever the legal context—are complex and fraught.  Though Sanger focuses her lens solely on stillbirths, The Birth of Death offers important insights that transcend this narrow issue.

Sanger’s final caution focuses on the tension between Missing Angels Acts and abortion politics.  As she notes, “[p]art of the strategy to make abortion hard to get and hard to choose has been to define fetuses and embryos as infants, children, persons, and victims.”  Though the Missing Angels Acts advocates profess no stake in abortion politics, it is easy to see the many ways in which the issuance of a stillbirth birth certificate implicates the question of fetal personhood.  In the end, Sanger does not take a position in the debate, noting only that the salient issue is “whether there are reasons to hesitate before blurring traditional markers between life and death and between private and public mourning as a matter of law.  And if we do blur these lines, how should we conceptualize and measure the costs of doing so?”

In the end, there is much to recommend this piece.  First, it is a classic Essay—a thought-piece that explores an interesting issue, but does not succumb to the temptation of offering a hastily cobbled together prescription.  Instead, its purpose is to inform and provoke thought.  On these fronts, The Birth of Death is resoundingly successful.

Second, I love that The Birth of Death is classic Carol Sanger, which is to say that it, like much of her work, is neither exclusively doctrinal nor exclusively theoretical, but instead focuses on the relationship between law and culture.  And it is her trenchant eye for identifying one-offs like the Missing Angels Acts and locating them in a broader cultural and legal milieu that is Sanger’s trademark.  In this way, The Birth of Death echoes her recent work on Infant Safe Haven legislation (Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753 (2006)) and mandatory fetal ultrasounds for those seeking abortions (Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351 (2008)).  Though pieces that blend law and cultural studies have been criticized for being fluffy and insubstantial, The Birth of Death, like Sanger’s other work, offers a robust portrait of legal culture anchored in her careful parsing of legal text and supported by her keen eye for important historical and literary detail.  In the end, it is the kind of piece that stays with you, popping up at unexpected moments and forcing you to see the world in a new light.

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Cite as: Melissa Murray, A Hug From the State: Recognizing Stillbirths, JOTWELL (July 19, 2012) (reviewing Carol Sanger, “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law, 100 Cal. L. Rev. 269 (2012)),