After a Miscarriage, What Happens to the Fetus? The History is Complicated.

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This essay is part one of a two-part series on fetal remains and cultural politics. Find the second part here.

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“Abuse of a corpse.” “Abandonment of a dead body.” “Concealment of the death of another.” These are charges that prosecutors have recently used to criminalize women who miscarry at home. On their face, they seem to indicate that prosecutors think the essential problem – the reason they are threatening women with jail time – is that they have not handled fetal remains as deceased persons.

Feminist legal interpreters of these cases have regarded these charges as, instead, pretextual excuses to arrest women for suspected abortions, for out-of-wedlock and concealed pregnancies, and for generally failing to be “good mothers.” In cases of stillbirths, they may serve as an excuse to investigate a woman for infanticide despite a lack of direct evidence. It is not, in fact, currently unlawful for women to cause their own abortions or to resent and reject their pregnancies, so prosecutors sometimes use these charges as a workaround. There had already been evidence of this misuse of the law, particularly aimed at low-income women and women of color, before the Dobbs decision unleashed abortion bans across large parts of the country. Since Dobbs this trend appears to be accelerating. The real purpose of these arrests, feminist critics say, is to scare women out of ending unwanted pregnancies and force them back into a domestic role subservient to men, and to punish those who get pregnant outside of a patriarchal structure of marital childbearing. It is to control women.

There is surely truth to this interpretation. I have made a version of it myself. But social media discussion of these cases suggests that it’s not the whole story – that a lot of people are genuinely upset by the idea of a fetus ending up in the trash, even when a miscarriage is spontaneous and a pregnancy is not viable, and they are inclined to punish a woman for it. And this concern seems to be increasing, provoked by media coverage of these arrests and the charges against miscarrying women. As sensationalist reporting trumpets “baby in a dumpster” stories, lots of people are taking the charges at face value. On social media, many demand that women be thrown in jail when they lose pregnancies and deal with the products of conception at home.

Part Two of this series examines one of these online conversations in detail. But first, it is important to understand the history of the handling of fetal remains. In today’s political debates, the progressive position is generally that women should be free to manage pregnancy (and the end of a pregnancy) according to their own desires and needs. A punitive attitude toward abortion and toward informal disposal of fetal remains is coded as conservative, and understood as part of a traditional adherence to women’s primary role as childbearers and mothers. But in fact, the history of fetal remains is not so simple.

The Complex History of Fetal Remains

The management of fetal remains has a complicated history in Western Europe and the United States. The Christian church long excluded unbaptized infants, including stillborn children, from consecrated burial grounds. The medieval Church taught that the unbaptized were destined to burn in Hell for eternity, and even popular belief in Limbo still left parents believing their stillborn children would never see Heaven. In distress at this state of affairs, parents sometimes defied ecclesiastical prohibitions by refusing to use a special burial site far from the church. Instead they buried full-term and near-term stillbirths next to the church where water from the roof above the altar–the most sacred part of the structure–would run onto the graves of these unbaptized children, representing the hope of baptism even in death.^[1] Yet these remained unmarked graves of unnamed children, typically excluded from family records.

Even informal burial was not universal. Stillborn and miscarried fetal remains were treated casually often enough that authorities had to give explicit instructions for respectful treatment. A 1649 English oath for midwives instructed, “if any childe bee dead borne, you your selfe shall see it buried in such secret place as neither Hogg nor Dogg, nor any other Beast may come unto it… [and] you shall not suffer any such childe to be cast into the Jaques [privy] or any other inconvenient place.”

Quiet, unmarked burials continued into the twentieth century in many places. A Lancashire craftsman described how in the 1950s, “‘If tha didn’t get kiddy baptised by t’parson, it would have to be put in a box and stuck in t’ground like some sort o’ animal … It wouldn’t be right like a proper babby, it would be just like burying a dog or a sheep’.”^[2] Formal modes of social recognition treated miscarriages and stillbirths more like the loss of a pet or a barn animal than a person.

Contrary to the midwives’ oath, fetal remains did sometimes end up in privies. Historians have presumed that these were often cases in which women were hiding their pregnancies and likely aborted them. In one well-documented case from 1650, a young, single servant was convicted for infanticide after concealing her pregnancy and miscarrying into the privy, despite expert testimony that the fetus was pre-viable. Archaeologists have excavated fetal skeletons from nineteenth-century American outhouses attached to brothels as well as middle-class households, suggesting that women across classes sometimes quietly ended pregnancies and disposed of the products of conception without ceremony.

As cities developed public health infrastructure and began to track and regulate both life and death, stillbirths and miscarriages attracted a new kind of government attention. Stillbirths were a troubling maternal and infant health indicator. They were also corpses that cities wanted to manage like other dead bodies to prevent the spread of disease. In 1871 the health department of the city of New York improved the reporting of stillbirths by requiring burial permits, but found that residents continued to surreptitiously dispose of pre-term miscarriages. The health department tightened regulations a number of times over the following decades, including requiring hospitals to report miscarriages.

In the 1910s, Baltimore authorities noted that residents typically buried miscarried fetuses in their yards or threw them in privies.^[3] The Maryland state government tightened regulation of miscarriage, ostensibly requiring doctors to report all pregnancy losses, no matter how early, as stillbirths, and require their formal burial. But patients and doctors alike ignored this burdensome regulation.^[4] In cities where few owned property, it is not surprising that fetal remains that country dwellers might have buried were instead ending up in outhouses.

In the late nineteenth century, some fetal remains took a novel path: as popular participation in science blossomed, physicians began to collect fetuses from patients to preserve in jars and present to scientific meetings. Most births happened at home, and families had substantial control over what happened to the products of a miscarriage. Physicians sometimes recorded their disappointment that families did not permit them to take a fetus. Occasionally a doctor surreptitiously pocketed a discovery, for example a surprise twin that had stopped growing mid-pregnancy and was unnoticed by the family in the excitement of the delivery of the full-term twin. But usually the family would have had to give the physician permission to remove the fetus. One doctor preserved his wife’s miscarriage in a jar. Starting in the 1930s, fetuses in jars were widely displayed in science museums and World’s Fair exhibits designed to teach a broad public about human development. When fetuses couldn’t become living babies, American culture was comfortable viewing them as material for scientific investigation and education.^[5]

As birth moved out of homes and into hospitals between 1900 and 1950, stillbirths and late miscarriages increasingly took place in hospitals. There, fetal remains tended to be handled unsentimentally as medical waste, though incineration or mass burial kept them out of privies and away from animals. By the 1940s and 50s the obstetric consensus was that it was psychologically best for women to not dwell on a failed pregnancy, or perhaps even pretend it had never happened and quickly move on to try again. Stillborns were whisked away and disposed of quietly.

New Developments in the 1970s and 1980s

In the 1970s and 1980s, developments on two fronts brought new attention to the management of fetal remains. First, anti-abortion activists periodically absconded with fetuses from abortion clinics and performed funerals and burials as a way of insisting that abortion represented the killing of a person. (More recently, some conservative state legislatures have mandated that hospitals and clinics treat aborted fetuses, and sometimes miscarried fetuses, as deceased persons. These regulations do not currently apply to miscarriages at home.)

Second, a pregnancy loss support movement bloomed, built by bereavement support groups of families who had lost wanted pregnancies through stillbirth, perinatal death, or miscarriage. With birth control easily available and abortion legal, pregnancies were likely to be wanted and welcomed, and losses were increasingly highly distressing experiences. Sympathetic labor ward nurses created new practices for commemorating losses, emphasizing that the loss represented a real baby who had died. Birthing women and their families were encouraged to hold and dress the stillborn or miscarried baby, and nurses took photos and made footprints. As historian Leslie Reagan has noted, these new rituals borrowed heavily from the assumptions and iconography of the pro-life movement, for example adopting imagery of tiny feet. They also claimed space for families to make their own meanings of birth and death, pushing back on the cold clinical practices that made birth in the hospital a medical rather than an emotional and social event.^[6]

The combination of these two cultural developments has meant that many people on both sides of the political aisle regard stillbirth or miscarriage as the death of a child, and expect fetal remains to be treated as the remains of a fully-recognized person, even if the loss is too early to have possibly resulted in a living child. And when it comes to women who lose pregnancies at home and put the remains in the trash, many people, especially those who think of themselves as “pro-life,” are willing to call for criminal penalties that punish women for failing to do what they, themselves, believe they would have done.

But while pro-life activists believe they are standing up for traditional Christian values, this handling of the products of conception does not reflect historical Christian dogma. Rather, it reflects twentieth-century developments, based first on public health considerations, and only later on a new set of ideas about neonatal bereavement. Unfortunately, in the hands of conservative lawmakers and prosecutors, a well-meant, bipartisan effort to support and affirm the feelings of bereaved parents, and to recognize new norms around loss, has become yet another way in which women are punished for their childbearing choices.

Notes

1. Katharine Park, “Birth and Death,” in A Cultural History of the Human Body in the Medieval Ages, ed. Linda Kalof (Oxford: Berg, 2010), 23. ↑
2. Quoted in Jacqueline Simpson and Steve Roud, A Dictionary of English Folklore (Oxford University Press, 2000) 371. ↑
3. Lynn M. Morgan (2002) “Properly Disposed of”: A history of embryo disposal and the changing claims on fetal remains, Medical Anthropology 21, no. 3-4 (2002): 256. ↑
4. ibid, p. 261-2. ↑
5. Shannon Withycombe, Lost: Miscarriage in Nineteenth-Century America (Rutgers University Press, 2019), 125-161; Lynn Morgan, Icons of Life: A Cultural History of Human Embryos (University of California Press, 2009), 156-158. ↑
6. Leslie Reagan, “From hazard to blessing to tragedy: representations of miscarriage in twentieth-century America,” Feminist Studies 29, no. 3 (2003): 356-378; Linda Layne, “‘He was a Real Baby with Baby Things’: A Material Culture Analysis of Personhood, Parenthood and Pregnancy Loss,” Journal of Material Culture 5, no. 3 (2000). ↑

 

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Featured image caption: An illustration of a fetus in utero, from The Byrth of Mankind by Thomas Raynalde, 1542. (Courtesy Library of Congress)