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When Your Failed Pregnancy Makes You A Murderer.

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The title of this post sounds crazy, huh? Unfortunately, for some women around the country who are mourning their stillbirths or miscarriages it’s all too applicable.

There’s news today that a Maryland woman is being charged with homicide after she gave birth at home recently to a stillborn baby and then went to the hospital to seek emergency medical care for complications associated with a stillbirth or miscarriage (such as bleeding). Not just homicide — first degree murder (on top of second degree murder and manslaughter). Charges based on a now-confirmed stillbirth. The child was never born alive, and yet its mother-to-be is now charged with its murder (and not under a state unborn victims of violence act, mind you. Most UVVA’s exempt the pregnant woman herself from any liability, specifically to prevent prosecution in situations like this).

There are some grisly details of the situation — including the fact that police found the fetus and three other dead fetuses at the woman’s home. So of course the media is going nuts. But this case is not about only this woman – Christy Freeman – and the chain of events that led to her arrest and murder charges. Other women are sitting in jail around the country facing murder charges for giving birth to stillborn infants.

Theresa Hernandez, for example, is facing murder charges in Oklahoma for giving birth to a stillborn. The state argues that Hernandez caused the death of her fetus. She is addicted to methamphetamine. She carried the child to term despite her addiction. But there’s no indication — other than the prosecutor’s yelling — that the meth caused the fetal demise. Especially when there is ample evidence that poverty is much more closely associated with fetal harm than any illicit drug. This link between poverty and problems with fetal and child health can be decreased when prenatal care is available and accessible. But prosecutions like the one Ms. Hernandez is facing (and has been waiting in jail for 3 years to reach trial on) only deter pregnant women who are addicted to drugs from seeking prenatal care.

Hernandez shouldn’t be sitting in jail facing life in prison for an unintentional stillbirth. And, focusing on this recent stillbirth alone, neither should Freeman, the Maryland woman (that is, putting aside the other fetuses found in her home, which, admittedly complicate things). It may be that officials can never figure out what “caused” Ms. Hernandez’s or Ms. Freeman’s stillbirth. In the 15-20% of pregnancies that end in miscarriage or stillbirth, the cause often goes unresolved. Many women who suffer stillbirths agonize over what they could have done better or what they did wrong. Are we to say that any woman who has a stillbirth should be investigated for potential criminality?

Such a solution makes no sense. Especially given that the rationale for prosecuting pregnant woman who are addicted to drugs or who are otherwise blamed for their imperfect birth outcomes is to protect the fetus. But drugs are often more widely available in prison than they are on the streets, and time and again women who give birth in jails do so under inhumane conditions — without medical treatment, and even being monitored by camera while being refused assistance. If we really care about pregnancy outcomes, why arent we talking about expanding healthcare (as opposed to cutting SCHIP) or to real community-based family-appropriate drug treatment? But more and more in this country, the logic or lack thereof behind a policy is of no import so long as the policy punishes women for not fulfilling some version of the ideal: virginal, devoted to motherhood when not a virgin, and subservient to men.

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