Pence's Legacy: Indiana Law Requires Burial or Cremation of Blighted Ovum

The Indiana General Assembly passed House Enrolled Act 1337, innocuously titled “An Act to amend the Indiana Code concerning health” earlier this year. Indiana Governor [Vice-President Elect] Mike Pence signed the Act, which makes many changes to the state’s abortion laws, immediately. One provision in particular attracted significant attention: the idea that the Act requires a “funeral” for an aborted or miscarried fetus.

To be fair, Indiana law does not require an actual “funeral” under any circumstances. But the Act does impose upon health care facilities the obligation to disclose to parents before an abortion or after “a woman has her miscarried fetus expelled or extracted in a health care facility” of “the parent’s right to determine the final disposition of the remains” of the miscarried fetus or the aborted fetus and to provide to parents written instructions regarding final disposition options. The Act also expressly limits the parent’s final disposition options to cremation and burial, eliminating the option of donating remains pursuant to the Uniform Anatomical Gift Act. The Act also requires a burial transit permit before final disposition, which typically involves hiring a funeral director.

These requirements essentially treat the tissue expelled or removed from a woman following a miscarriage or abortion as human remains rather than medical waste. Advocates of the law argue that the intent is to treat all human life with respect. Critics of the law argue that the requirements serve two purposes. First, are to raise costs for abortion providers. Second, to force women to think about an aborted fetus as the equivalent of a full term infant in the hopes that this will discourage abortions. Critics of the Act focus on the provisions that pertain to aborted fetuses. Little attention has been paid to the final disposition requirements for miscarried fetuses, a provision that will impact many more women. According to the Mayo Clinic, approximately 10-20% of all known pregnancies end in miscarriage. “The actual number is likely higher,” the Clinic advises, “because many miscarriages occur so early in pregnancy that a woman doesn't realize she's pregnant.”

The Act defines “miscarried fetus” as “an unborn child, irrespective of gestational age, who has died from a spontaneous or accidental death before expulsion or extraction from the unborn child's mother, irrespective of the duration of the pregnancy.” Given the high number of spontaneous, early miscarriages, it is surely absurd to think that Indiana law makes no distinction between a miscarriage at one week gestational age and a spontaneous or accidental death at 30 weeks gestational age. And yet...

This week, I discovered that Indiana hospitals are carrying out the letter of the Act’s rules regardless of the absurd results that they create. I learned that a friend of a friend recently suffered from a blighted ovum, a condition that “occurs when the early embryo stops developing, is reabsorbed and leaves an empty gestational sac.” A blighted ovum occurs early in pregnancy, usually between 8 and 13 weeks, often before a woman recognizes that she is pregnant. My Internet medical research did not indicate how large a blighted ovum is, but by way of comparison, at 8 weeks, a fetus weighs approximately 1 gram and is slightly longer than a half inch. In any event, when a woman has a blighted ovum, the doctor may perform a dilation and curettage (D&C) to remove the placental tissue. Is this a miscarriage? Is the placental tissue removed during a D&C following a blighted ovum in which, remember, the embryo itself is reabsorbed into the mother’s body, leaving an empty gestational sac, legally a miscarried fetus? In Wonderland Indiana, it is.

The friend of my friend scheduled her D&C at large hospital in central Indiana and was presented with a form to fill out and sign. Distressed by the choices presented to her, she shared a copy of the form: “Notice to Parents of Right to Determine Disposition of Remains Less than 20 Weeks Gestation.” The form advises parents that “the family has the right to choose to have a private cremation or burial service, or have the hospital arrange for common cremation for the baby’s body or miscarriage remains.” The parent may check the box for “I choose to have a private cremation or burial for my baby. I will be responsible for all arrangements and financial requirements.” Alternatively, the parent may check the box for “I understand that [hospital] and [funeral home] will cremate my baby’s body or miscarriage remains in a respectful manner at no charge to me. I understand that there will be no ashes for me to keep.” Parents then must either check the box to be “notified about the special service when the ashes are buried” or indicate that they “DO NOT want to be notified about the special service when the ashes are buried.”

I’m a lawyer. I understand how useful forms can be. I also understand how difficult it must be to create a single form to cover all “accidental and spontaneous deaths” before 20 weeks gestation. Regardless of the challenges, this is a bad form. This is a form that refers at least four times to “my baby” and “my baby’s body.” This is a form that can be reasonably read as guilt tripping a woman into choosing to be informed of a “special service” conducted when cremated remains of any number of miscarried and aborted fetuses are buried. What kind of “special service”? Buried where? The form doesn’t say.

A woman suffering from a blighted ovum in which the embryo has already been reabsorbed into her body may understandably have some trouble thinking about the tissue removed during the D&C as her “baby’s body.” She may understandably be disturbed by the vague reference to a “special service” at which the tissue removed from her body will be buried in an undisclosed location and memorialized by strangers in her absence. Science and religion offer no consistent answers regarding when human life begins. At conception? At viability? Upon quickening? Many women do not believe that the tissue expelled from her body following an early miscarriage has reached the threshold of life. They may mourn the loss of the possibility of a healthy, viable pregnancy, but do not mourn the loss of a cluster of cells. Through HEA 1337, the General Assembly (and Vice President-Elect Mike Pence) have imposed their view that life begins at conception upon all women in Indiana. They have required all health care facilities and all parents to think about an early term miscarriage, and even a blighted ovum, as the functional equivalent of a nearly full term fetus. This leads to absurd and distressing results.

How would the hospital react, I wonder, if a woman checked the box exercising her right to have a private burial or cremation? Normally, a hospital would release human remains to a funeral home. Would the funeral home send a hearse to the hospital to collect a “miscarried fetus” weighing less than 1 gram? The leading casket company in the United States—Batesville Casket—is located in Indiana. Will it start manufacturing very, very tiny caskets? Will cemeteries begin selling very, very tiny burial plots? Surely the General Assembly and Governor Pence gave these questions careful consideration while drafting HEA 1337.

Of course a woman who suffers a miscarriage and mourns the loss of her fetus should have the right to make the decision regarding the final disposition of its remains as she would be able to for any other child. But that isn’t the point of HEA 1337. Although it is labelled an Act “concerning health,” it is transparently an Act to discourage abortion. While it seems clear that the provision regarding the final disposition of miscarried fetuses was an afterthought, ironically, it is one of only a handful of provisions to survive temporary restraining orders issued by federal courts in lawsuits brought this summer by Planned Parenthood, the ACLU, and Indiana University against the State of Indiana to enjoin the law. So while Governor Pence prepares to move to our nation’s capital, the women of Indiana will continue to struggle with an absurd and paternalistic law that requires them to mourn a blighted ovum.

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