What is the MISSing Angels Bill movement and how did it begin?
It all started with an idea that a change needed to happen. When ‘ideas’ are introduced into the realm of a state’s legislative body, ideas often become bills. The definition of a bill is ‘a draft of a law presented to a legislature for enactment’. Sometimes, an originating bill is also known as the law that evolves from it (as in the ‘G.I. Bill’). If all goes well, a Bill becomes an Act (the formal product of a legislative body), then the Act becomes a Statute (a law enacted by the legislative branch of a government).
On July 27th, 1994, Joanne Cacciatore, an Arizona woman, gave birth to her fourth child. It was her baby’s due date to be born. Only 15 minutes prior to giving birth, her baby’s heartbeat stopped suddenly. Her beloved daughter Cheyenne died during the birth process (more of the story here).
Joanne received Cheyenne’s death certificate in the mail. When she called the vital records office in Arizona to request Cheyenne’s birth certificate instead, she was told, “You didn’t have a baby. You had a fetus and the fetus died.”
Joanne vowed to change this for women in the future. She lobbied the Arizona legislature for a year, gathering bipartisan support for the bill- and thankfully – she didn’t stop there. Since Cheyenne’s death, Joanne founded a group for bereaved parents called the MISS Foundation. Joanne dedicated more than a year of her life in Arizona’s Senate and House chambers meeting with legislators, public health officials, and organizing a task force in 1999 with volunteer members including Paula Mikkelson, Heidi and Carl Brashears, Kipp and Susie Charlton, Guillermo Gutierrez, M.D., David Garard, Sgt. Randy Force, Dr. Mark Fischione, and Cindi Nannetti. MISS Foundation’s families were the initiators and supporters of this legislation.
A portion of the text in the original legislation reads:
Section 36-329.01, Arizona Revised Statutes, as added by this act, may be cited as the “MISSing Angels Act” to honor families of the MISS Foundation.
The bill passed the Arizona State Senate with unanimous support during the 2001 legislative session. Shortly thereafter, Governor Jane Dee Hull signed the bill as she said, “I think we all know that this is something that should have happened long ago for women.”
In September of 2001, Dr. Catherine Eden of Arizona Department of Health Services presented Joanne Cacciatore with the first birth certificate for a stillborn baby issued in the United States. Since then, Joanne and the MISS Foundation have worked tirelessly to pass the bill in other states. As of April of 2007, the bill has passed in 18 states, and is being considered in eight others.
What is the definition of “stillbirth” and is a stillborn baby who died actually “born”?
First, let’s examine other some other relevant definitions: The World Health Organization and the U.S. Federal Code define both “birth” and “live birth” separately:
Birth is defined as: “The complete expulsion or extraction of a dead fetus (or stillborn baby) of more than 500 grams or a live fetus from its mother irrespective of the duration of pregnancy.” (Source- World Health Organization – Definitions in indicators in family planning, maternal and child health, and reproductive health used in the WHO Regional Office for Europe. Revised March 1999/January 2001
Another definition is offered by the Centers for Disease Control demonstrating that still born babies are actually born:
Birth Weight is defined as: “The first weight of a “fetus” or a newborn obtained after birth. This weight preferably is measured within the first hour of birth, before significant postnatal weight loss has occurred.” Source: CDC Appendix E. Definitions and References, p. 1
Live birth is defined as: “When a fetus, whatever its gestational age, exits the maternal body and subsequently shows any sign of life, such as voluntary movement, heartbeat, or pulsation of the umbilical cord, for however brief a time and regardless of whether the umbilical cord or placenta are intact.”
Source- 1. World Health Organization. International statistical classification of diseases and related health problems. Tenth Revision. Vol 2. Geneva, Switzerland: World Health Organization, 1993:129.
So, yes, a baby who dies in late pregnancy from naturally occurring causes is still born. Some babies die antepartum (during the birth process itself) and some die silently in the womb a day or two before labor and delivery are painfully induced.
The event is birth, and the outcome can be live born or still born.
Now to the definition of stillbirth:
A stillbirth is a naturally occurring, intrauterine death that occurs after the 20th week of pregnancy all the way up to birth. The “stillborn infant” is born without any attempt at respiration, including a beating umbilical cord.
So, even a post-term baby- who went to 42 gestational weeks and who might weight more than ten lbs, but, who dies one minute prior to birth is considered “stillborn.”
Is “stillbirth” a legal term?
Yes. The term is a commonly accepted term and defined in various standard and medical dictionaries. In fact, the California Supreme Court and other courts around the country, in numerous published decisions from the 1980s to the 1990s, has used the following terms:
- “stillborn baby”
- “stillborn child”
- “stillborn infant”
What is the current protocol for recording stillbirth?
The registrar of vital records issues a “Certificate of Fetal Death” or some legal record of death for all stillbirths. This is the only record the family is able to receive at this time. Families are mandated by state and federal law to pay for the final disposition, funeral or cremation, of the baby’s body after a stillbirth.
The Centes for Disease Control, National Center for Health and Vital Statistics tracks ‘fetal deaths’ (or stillbirths) after 20 completed gestational weeks. However, stillbirths, regardless of the duration of gestation, are not counted in infant mortality data in the U.S.
How many stillbirths occur in a year?
This is difficult to ascertain with certainty because of the lax handling of stillbirth records and varying state compliance. In the United States, there are approximately 25,000-30,000 babies who are born dead every year.
What does the MISSing Angels Bill do?
This change would require the state’s vital records office to issue a “Certificate of Birth, Resulting in Stillbirth” for each stillbirth under two criteria: 1) they meet the medical/legal definition of stillbirth (naturally occurring, intrauterine death that occurs after the 20th week of pregnancy all the way up to birth) and 2) it is available as an optional document to parents upon request.
Though stillbirth automatically excludes elected terminations, most states introduce additional language that states, “This does not include elected terminations of pregnancy.”
Talking points about the “Certificate of Birth resulting in Stillbirth”:
There are vast psychological benefits of this legislation. This bill extends much needed dignity and compassion to women who endure the death and the birth of their baby. The state’s refusal to validate the experience of childbirth is inexcusable. The mother of a stillborn baby must still give birth to her dead infant.
All states require the issuance of “Certificate of Live Birth” for baby born before 20 weeks gestation who exhibits any sign of life including taking a single breath, or having a single heartbeat. This means that at pre-viability, a premature infant born at 18 weeks gestation who takes one small breath, yet has no chance at survival outside the womb will receive a “Certificate of Live Birth.” Conversely, a baby born at 42 weeks gestation, well past viability, who dies minutes prior to birth and weighs 10 lbs will be viewed as a “fetal death” and the birth will not be acknowledged. This is very inconsistent and difficult for the family of the full term infant to accept. There is no additional ongoing cost to the state for this proposed legislation, and in fact, can be revenue generating.
Many stillbirths occur at or even past full term to otherwise apparently healthy babies.
The process, cost, and investment of pregnancy, labor, and birth for a live born or stillborn baby is identical.
Medically, pregnancy is a process, which concludes at the birth event, whether the baby is live or still born.
Consistency in the law: Currently, the family of the stillborn infant is required to carry the duty to bury the stillborn child. Yet, there is no willingness to acknowledge that this infant ever existed.
In states where this bill has passed, many women have applied for the Cert of Birth Resulting in Stillbirth decades after their baby’s death. One 83 year old woman who applied for and received her baby’s birth certificate 56 years after her baby’s death said, “I feel like I can finally die in peace.” This legislation has tremendous value to women.
Is this a therapeutic application of the law?
This bill is both rational and therapeutic, indeed, in terms of application.
Rational arguments include facts such as:
- A death certificate and mandated final disposition laws already exist. In other words, every state requires cremation or burial (obviously, as there is a body and a seven or eight pound baby must be buried or cremated). Philosophically, how can one die if one has not lived?
- A baby born at 19.5 gestational weeks who takes one breath will receive a Certificate of Live Birth or Certificate of Birth and will be counted in infant mortality data. Many stillborn babies are born at, near, or past full term, yet they are not counted in infant mortality nor recognized.
- The certificate is not a Certificate of Birth or Live Birth. The title is Certificate of Birth resulting in Stillbirth. Thus, the certificate is easily distinguished from a regular birth certificate.
- The certificate is always optional in each of the 27 states in which current laws have been passed. Parents must always request, apply for, and pay for a Certificate of Birth resulting in Stillbirth. This costs the State nothing; rather, it can be revenue generating.
As far as the therapeutic application of the law:
President Obama was cited in the New York Times on May 24, 2009 with regards to the nomination of Sonia Sotomayor, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
In other words, perhaps liberalism and language as well as rhetoric seem to offer some degree of advancement and support for therapeutic jurisprudence in the law.
Who opposes this legislative movement and why would they do that?
Organizations that have opposed this bill in various states* include the: National Organization for Women, Planned Parenthood of California, ACLU, NARAL, California Medical Association, and the California American College of Obstetrics and Gynecology. These groups purport that this legislative movement threatens reproductive freedom for women.
*Some are state organizations that act in contrary to the public statements of their national organization’s position.
What is your response to organizations that oppose this legislation?
We believe they don’t wholly understand the issue. In a statement by Kim Gandy, President of the National Organization for Women, on CNN’s American Morning in January of 2007, Gandy’s position on this bill was that they would not have a problem with it as long as it met two criteria: 1) the document would exclude abortions and 2) that it would be optional. We have taken special care to emphasize that elected terminations are not included and that the document would be optional.
Attorneys for the ACLU were quoted in People magazine’s January of 2007 issue stating that they did not want the word “child” in the language of the bill. Despite the fact that even the California Supreme Court in published cases has used the term “stillborn child”, we have addressed this concern in most states by only using the term “fetus” in this bill.
This issue is being thrust into abortion politics for absolutely no sound reason.
California’s State Supreme Court confirmed in 1994 that a defendant can be charged with murdering a fetus regardless of whether the fetus is old enough to survive outside the womb. In cases like these, even the most zealous ideologue must reconsider. Remembering the debacle over the Unborn Victims of Violence Act – aka “Laci and Conner’s Law”, there are crucially relevant lessons here to heed:
In “Victim Politics,” by Marcia Yablon in The New Republic, this passage appeared:
“Organizations. . . oppose the Unborn Victims of Violence Act because they say that by legally enshrining fetal personhood it undermines Roe v. Wade. But that simply isn’t true. Since the bill specifically exempts all forms of legal abortion, it leaves the constitutional rationale for the right to choose unaffected. According to Richard Parker, a professor of criminal law at Harvard University and a supporter of abortion rights, “There is nothing as a formal law that would undermine Roe v. Wade. . . . This is not at all a big deal.”
This legislation exempts all forms of abortion.
Taylor Marsh, a pro-choice advocate and “radio show talk host, national blog reporter and author who’s been a consistent political, social and cultural force on TV and radio for over 15 years”, had this to say and I quote:
“Don’t get me wrong, certainly we must stay vigilant with regard to our reproductive rights, especially when it comes to judges (on all circuits). But we must also distinguish our causes, focusing on the fronts of reproductive choice that are worth highlighting, which N.O.W. cannot do if their credibility is lost on obvious cases…”
As became apparent during the controversy over the Unborn Victims of Violence Act, the “vital center” – including non-radical pro-choicers – reacted forcefully against the radical pro-abortion position as, notably enunciated by Mavra Stark:
“If this is murder, well, then any time a late-term fetus is aborted, they could call it murder,” Morris County NOW President Mavra Stark said on Saturday… “There’s something about this that bothers me a little bit,” Stark said. “Was it born, or was it unborn? If it was unborn, then I can’t see charging (Peterson) with a double-murder.” -Mavra Stark, President, New Jersey N.O.W.
And Taylor Marsh’s response to Stark’s comment:
“This is not only insulting to intelligent people. It is reprehensibly pathetic activist propaganda.”
Sometimes basic human decency, common sense, and compassion need to overwhelm ideology.
The Unborn Victims of Violence Act – the very law that pro-choice groups feared would trump reproductive rights – did not, as it turned out, lead to any deleterious consequences for reproductive freedoms, proving those fears utterly unfounded. Supporters of this legislative movement are confident that the same situation will exist upon passage of this bill, and that SB 850 is no threat to reproductive rights.
A vote against the MISSing Angels Bill (Senate Bill 850 in California), however, invites harsh criticism from all corners of this debate – excepting radicals – at the expense of the bill’s opponents. The “vital center” of America clearly exhibits overwhelming support for the goal of Senate Bill 850, which, boiled down, is simply, common human compassion and dignity. It is not only possible, but demonstrable, that laws against feticide can coexist with laws protecting reproductive freedom.
Why would the MISSing Angels Bill be any different?
Yes, but what about the “slippery slope” argument?
Carl Sagan, internationally renowned scientist, warned against what he termed logical fallacies and rhetoric. He said that the argument of the “slippery slope” was one of those rhetorical fallacies in logic, calling it an unwarranted extrapolation of the effects. The assertion that this reasonable, simple, compassionate, and meaningful piece of legislature is a slippery slope is the rhetoric of radicals.
We cannot continue to withhold the choice of these women because of the hypothetical and unlikely possibility of an adverse outcome. If this is really about women’s rights to choose, then let them choose. The time has come for these women, and their families, to be recognized- for these women, and their partners, to receive the dignity and compassion that they deserve and when they choose.
Who supports this legislative movement?
Many national organizations that provide aid to grieving families have supported this legislation, including:
MISS Foundation, the authors of this bill
Elisabeth Kubler-Ross Foundation
March of Dimes
National Stillbirth Society
Baby Kick Alliance
along with numerous grass roots parental bereavement groups including Sharing Parents of Sacramento.
And numerous pro-choice legislators have voiced support for MISSing Angels bills. These include state legislators such as:
Susan Gerard – a former pro-choice Republican in Arizona
Garrett Bradley – a pro-choice Democrat in Massachusetts
Andy Nichols – a former pro-choice Democrat, now deceased, in Arizona
…and numerous other pro-choice state legislators in:
- New Jersey
- South Carolina
There is even support for this bill from within pro-choice organizations, showing the dissent of moderates from extreme views that marginalize women who have experienced the stillbirth of their baby:
“To establish at the outset my bona fides for commenting on this matter, I am a mother of three (grown) children and never experienced either a stillbirth or an abortion. I am also a committed pro-choicer, and in fact was President of the Westchester County (NY) chapter of NOW back in 1973 or thereabouts. Yet when I first read of this controversy in the SF Chronicle, my sympathies immediately went to the mother of the stillborn (even though I don’t regard myself as ideally [excessively?]) maternal. I was surprised to learn that the objection was coming from the pro-choice side, and wonder if my pro-choice sisters might not be a bit too rigid in this case. I can understand why the mother of a stillborn infant, who was able to see and hold the dead baby, might wish for a more dignified memorial than a death certificate. The birth certificate would acknowledge that she had indeed carried the fetus, with everything that that entails, and had intended for it to be born alive.
Since some states do issue birth certificates under such circumstances (a fact of which I was unaware), a precedent has been established, and I think my home state of California should follow suit.”
And Sharon Kaplan, quoted in Mill Creek Community News, Chief Executive Officer of Planned Parenthood of Delaware said, and I quote:
“If this certificate helps ease their pain, then we support it. It does not seem to me to be an anti-choice agenda.”
There is fundamental injustice and inequity going on here about which we should all be seriously concerned. Parents of babies who are stillborn are being thrust into the middle of a provocative, long standing battle, as pawns in a political debate that has absolutely nothing to do with them. The State- the government servant of the people- cannot continue to reject the will of these parents. They have been through enough. The State must do what is right for the citizens it represents.