How Fetal Burial Laws Govern Pregnancy Loss Grief

Editor’s note: On November 28, 2016, Texas finalized rules requiring fetal remains to be cremated or buried. The requirement, which does not apply to miscarriages or abortions that take place at home, has been derided by reproductive justice advocates as a ploy to deny access to abortions and unnecessarily burden women.

A new legislative trend is gaining momentum in the ongoing assault on human rights and women’s bodily autonomy. Fetal burial laws seek to curb abortion access by requiring that fetal remains go through a mortuary process and are buried. Rules mandating the burial of fetal remains have already been enacted in three states; Indiana state governor and Republican Vice Presidential candidate Mike Pence signed a sweeping abortion restriction bill into law that included fetal burial mandates, a bill so extreme it has been temporarily blocked by a federal judge’s injunction.

Proponents of these bills spout manufactured rage about the current, longstanding disposal method for fetal remains, conveniently omitting anything but the real focus of their ire: constitutionally protected abortions. Providers and champions of choice are left to ask how exactly these bills will be enacted, who is subject to them, where the significant financial burdens will land, and where the collected information will go. Fetal burial laws market a “solution” to a problem that doesn’t exist while creating a host of new ones.

Every fetal burial bill that is introduced has far-reaching consequences, not only for those who choose to terminate a pregnancy, but also for those who may lose one. There is so much about pregnancy we still do not know — including all the reasons why a pregnancy may end. Whether a pregnancy is planned or unplanned, wanted or not, miscarriage is a painful and often traumatic process that takes time to heal from. It can involve days or even weeks of wondering, of waiting, of physical pain and emotional distress, and our culture and medical infrastructures are still ill-equipped to support people experiencing this kind of loss.

In OB/GYN offices, there is no special procedure, no separate waiting room, no divide or quiet given to someone experiencing a loss in the midst of bubbly excitement and creation. Advice on how to heal can be found in lists buried on websites peppered with ads featuring women glowing down at their healthy, full middles. Shared experiences and what to expect during a miscarriage are preserved on now-defunct message boards. Though miscarriage is incredibly common, people who experience it are often left to move through the stages of trauma and grief in silos.

Fetal burial bills, designed to take aim at reproductive rights, seem rushed and likely stem from a singular source: the legislative branch of the anti-choice movement, Americans United for Life. AUL drafted the model legislation for burying all fetal tissue, regardless of “whether their deaths are spontaneous, accidental, or induced,” and “regardless of the state of gestational development.” The model on which these laws are based subjects providers handling fetal remains to a multitude of requirements; for example, they are required to have relationships with funeral homes to allow for fetal burial, echoing the recently shot-down law requiring abortion clinics to have admitting privileges at local hospitals. There is no clear line of responsibility for the cost of the burial, which can start at $2,000. Further requirements include fetal death certificates naming the mother and signed by the “the mother or her authorized representative,” essentially creating a registry naming every person who has lost a pregnancy. All of this requires the patient to endure a process unnecessary to the healthy and successful completion of the medical care.

How will the costs of fetal tissue burial be distributed? How will these laws be enforced? It seems misguided to believe that an already overburdened health-care system will fail to pass on some of the cost and burden to grieving parents. For many of them, the additional cost of burying the fetal remains from one pregnancy loss would be devastating. What if they experience multiple miscarriages? People who’ve experienced a pregnancy loss should not have to wait for a mortuary bill as they decide whether they want to try again. The additional cost could dissuade some from attempting to conceive again, or force someone still coping with their loss to forgo necessary treatment or therapy and return to work before they have physically and psychologically recovered.

While larger hospitals and healthcare systems could find a way to absorb some costs and pass on others, the real targets of these laws are those smaller places that provide essential, inclusive care to people who might otherwise go unserved. These local clinics are often the only healthcare options that provide services on a sliding scale. Some also represent an alternative to the conveyer-belt healthcare model, providing the type of personal attention and care those experiencing miscarriage often need. Fetal burial laws could have a serious impact on how many patients these clinics can serve; the additional cost could even force some to shut down altogether.

Study after study has found that abortion restrictions have numerous negative consequences for women’s health, and have a particular impact on miscarriage care. Physicians are forced to keep in mind current abortion-related laws while treating miscarriage, which could lead some to make decisions based on litigation as opposed to the physical and mental health of their patient. These bills are not accompanied by a communication plan for healthcare providers; actual implementation is left to those hoping to avoid prosecution. Many of these fetal burial laws require healthcare providers to ensure that certain steps are taken within a specific timeframe, without regard for whether a grieving patient needs more time or space.

Further questions hover: Is the next step to regulate the disposal of fetal tissue from miscarriages that happen at home? Are people meant, along with the emotional implications of pregnancy loss, to urinate through a sieve for weeks under threat of fine or imprisonment? It might sound ridiculous, but how else would such requirements be met? The lack of thoroughness and specificity has the potential to make a dangerous bill even more harmful, and these underdeveloped and largely untested laws have yet to show their full impact; politicians who support them are long on outrage and short on answers to legitimate questions.

Miscarriage is not something we should be legislating or criminalizing, particularly not via literal trial and error. The logical extensions of these laws are chilling for all who see a pregnancy end, whether by choice or not. This new wave of legislation will not simply, as The Atlantic states, “[create] a mechanism for grieving . . . [for] women who miscarry or go through emergency medical abortions.” They will add to the trauma of pregnancy loss for those who miscarry, another aspect of the process that forces an external locus of control.

A universal truth to miscarriage is that each one is different. There is no way to give unilateral advice that is best for everyone. A bill motivated by the desire to take away bodily rights will not empower us to do what is best for each other in our times of need. This is the repurposing of our trauma; this is the governing of our grief. Fetal burial laws will have a devastating impact on many experiencing pregnancy loss. It is imperative we have the right to choose not only what happens to our bodies, but also how we heal.

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Lead image: pixabay/drippycat