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Publication Title

Washington University Law Review

Abstract

Each year in the United States, millions of women’s pregnancies end not with the birth of a living child, but in miscarriage or with the birth of a dead, stillborn child. Marginalized women face a higher risk of these undesired endings. Compared to white women, Black women are twice as likely to suffer a late miscarriage and to give birth to a stillborn child. Compared to wealthier women, women of lower socioeconomic status face a heightened risk of miscarriage and are twice as likely to give birth to a stillborn child.

Miscarriage and especially stillbirth are significant life experiences for women. Yet, they receive little attention within women’s rights movements. For years, the reproductive rights movement has avoided the topics of miscarriage and stillbirth due to their supposed conflict with fetal personhood. Motivated to highlight the experiences of marginalized women, women of color introduced the more holistic reproductive justice movement. Despite its broader lens, however, reproductive justice still does not highlight women’s experiences of miscarriage and stillbirth.

This Article seeks to cure these omissions and to define women’s reproductive justice-based rights concerning miscarriage and stillbirth. She has a right to prenatal care aimed at preventing miscarriage and stillbirth. She has a birth justice right to give birth to her stillborn child as she desires and to be fully informed of her treatment options for miscarriage, including the costs of those options. She has a right to culturally appropriate mental and emotional health treatment after miscarriage or stillbirth. Last, she has a right to parent her stillborn child, a motherhood entitled to legal recognition in the form of tax benefits, birth certificates, tort claims, and entitlement to autopsies.

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