When a women miscarries a fetus, what happens to their remains? The answer varies from state to state. In Indiana, the law distinguishes between a "stillborn" baby and a miscarried fetus. Indiana Code section 16-18-2-341 defines a "stillbirth" as a "birth after twenty (20) weeks of gestation that is not a live birth." The chapter of the Indiana Code which deals with death certificates and the disposition of human remains deals with stillbirths and "dead bodies" on the same terms -- a death certificate is issued and the next of kin is tasked with disposing of the remains.
The Indiana Code is silent, however, on the disposition of the remains from a birth prior to twenty (20) weeks of gestation that is not a live birth. Presumably hospitals classify the remains as "pathological waste" pursuant to Indiana Code section 16-41-16-5 and dispose of it in the same way that they dispose of "tissues, organs, body parts, and blood or body fluids in liquid or semiliquid form that are removed during biopsy, surgery, or autopsy." The Indianapolis Star suggests that standard procedure is to cremate the remains in common with other biological materials, which is a method of disposing of pathological waste.
A bereavement specialist, recognizing that not being given the option of handling the remains often makes it more difficult for parents to process their grief, suggested that the law should be changed. The Public Health Committee of the Indiana General Assembly House of Representatives will consider HB1190 this week. The bill requires a health care facility to inform "a parent" of a miscarried fetus of their right to determine the final disposition of their fetus' remains and that the parent is responsible for the expense.
One issue with the draft bill is the reference to "a parent." It is understandable why the bill would not give the choice only to the mother, but identifying the other parent of a miscarried fetus is somewhat problematic. There is no legal process for determining the father of a miscarried fetus, since there is no birth certificate. The bill does not address how the health care facility will identify the father. Perhaps more significantly, the bill does not address how to resolve disputes between parents if they disagree about the disposition.
The executie director of the Indiana Funeral Directors' Association also noted that the bill creates ambiguity in the law because a miscarriage after 20 weeks would be simultaneously defined as a "miscarried fetus" and a "stillbirth."
A better approach would be to define miscarried fetus and require hospitals and health care facilities to give the next of kin the option to dipose of the remains in accordance with the established processes in Indiana Code chapter 16-37 that already apply to stillbirths and dead bodies. By tracking the processes that currently exist, both for identifying next of kin and for the disposition itself, the law would minimize unintended ambiguity and give grieving parents more options for dealing with their loss.