The Truth Behind Utah Fetal Remains Law

  • William Lawyer
  • 09/18/2020

Something that doesn’t really tend to get a lot of attention from pro-life or pro-choice advocates is what happens to the body of the child following abortions or miscarriages.

It’s easy enough to see why this would be. For both pro-life and pro-choice advocates, the most controversial part of the entire subject is no longer an issue, the child has already been terminated. Comparatively, people on both sides tend to view the issue of what happens to the remains of the unborn as being rather peripheral and inconsequential.

In Utah however, this issue was recently brought to the forefront by S.B. 67, Disposition of Fetal Remains. There has been a lot of debate and discussion about what happens after abortion and miscarriage, and many people have formed some very strong opinions on the subject.[1] 

Unfortunately, there has been so much confusion, misinformation, and disinformation about this bill that a lot of these opinions about the bill are not really based in fact. In the hearing, the bill’s sponsor Senator Bramble emphasized this at the beginning of his speech, stating:

I’ve been up here for a few years now, and every once in a while you get a bill that gets misunderstood, and then things go viral. This is probably the most misunderstood bill, based on media reports, that I’ve had the occasion to be involved in.[2] 

Though it is not uncommon for misinformation to be spread about pro-life bills, S.B. 67, in particular, seems to have been grossly misrepresented, whether intentionally or not. This becomes quite obvious with even the most superficial examinations of media reports on the bill.

Many articles from groups in Utah and elsewhere featured explosive titles about the bill such as “Women could be forced to pay to bury aborted, miscarried fetuses under new Utah bill.” or “Utah bill: Women Have to Provide for Disposal of Fetal Remains After Abortion, Miscarriage”  [3][4] 

Other news articles from prominent news organizations even described how the bill would force women to dispose of the remains of an aborted fetus themselves. Even Fox News ran stories asking, “Should women be forced to decide what happens to the remains of their miscarriage or abortion? That's at the center of a highly-controversial bill debated Friday by the Utah Senate.[5] 

In reality, S.B. 67 does none of this. It does not require women to pay for the burial of their child, it does not require for them to dispose of the remains, and it does not even force them to decide what happens to the body after an abortion or miscarriage.

Instead, this bill helps empower women who have suffered a miscarriage or gone through an abortion a choice. It gives them the option to decide how they want the remains of the child disposed of, of they so wish. It does not force them to do anything, it does not even require that they make a decision, they can forgo making any choice and let the clinic take care of everything. All it does is provide them with an opportunity to make a choice if they desire.

On Friday, January 31st, I attended the Senate Health & Human Services Committee hearing on this bill with my cousin and another member of The Lifeguard Initiative, Ivan Costner. I prepared testimony for it, and we listened to the Senators discuss the bill in depth.

I got to hear firsthand the testimonies of many women who had gone through miscarriage and had suffered horrible and tragic losses, and then had that trauma compounded by never even being given a choice regarding the body of their child.

The knowledge for these women that their child had been thrown away, discarded as so much medical waste, haunted them. That they were not even given a choice that they could exercise or wave in these situations frustrated them. For the doctor to simply take the body of their child away for disposal, never asking them what they wanted, seemed almost as difficult for many of these women as losing their child in the first place. One resident, Alicia Alba, gave a particularly moving testimony about her own struggles and experiences.

"In 2014, I lost a baby to miscarriage at ten weeks gestation. I woke up in the morning to the realization that I was bleeding heavily, and rushed to the doctor’s office. He performed an ultrasound but there was nothing he could do, my baby was gone. After he left the room, I sat up and delivered a tiny baby into the palm of my hand.

As I sat alone in the exam room I was in shock and didn’t know what to do. The room seemed to contract around me as I stared at this tiny little person cradled in my hand, the small fingers and toes, their face, the body of my deceased child. There is no denying the humanity of the unborn after you have seen them face to face. A person is truly a person, no matter how small.

The doctor returned to the room shortly after and saw what had happened. He told me again how sorry he was for my loss. My doctor and my nurse were very competent and compassionate in their care, but there were no protocols in place for handling situations like mine. I handed my baby’s body to the nurse, and then fled to my husband’s workplace.

Hours later as I lay in my bed recovering I was haunted by the realization that my baby had likely been disposed of as medical waste. My baby had been thrown away. This traumatic truth caused me great pain and deeply impacted my life for several years. I struggled with post-traumatic stress disorder, debilitating grief, anxiety, and depression.

I promised myself that I would do whatever I could to help other women who face traumas like mine, so here I am."[6]

Other residents shared their testimony, describing how they never had a choice, never had closure. They spoke about how they wished they had asked more questions, had been given the opportunity to decide what happened to their child, or even just knew what happened to their body.

In addition to giving these women the choice to decide what happens to their child, the bill also allows the remains of the child to be transferred out of state, ensuring that women who have suffered tragic losses may transport their children home for burial.

This part in particular was emphasized because of the personal experience of the senator in question that sponsored this legislation, Curt Bramble. A friend of his came out for a conference in Utah, miscarried during her stay. He spoke about this during the hearing, and it seems that she was eventually able to obtain the remains, but was unable to arrange for the body of her child to be brought home because there was no way to transport it out of the state.

"A few years ago I had occasion, here in Salt Lake City, we had a conference, and a friend of mine was here attending the conference, she miscarried at a downtown hotel. But, she wasn’t sufficiently into the pregnancy for that unborn child to fit the qualifications of the law. But, it was a perfectly formed human being. She wanted to transport that baby back to Indiana for a proper memorial service and burial.

We found that the law did not allow for that, because it treated that unborn child that tragically died as medical waste- and it was a miscarriage, a stillbirth, and I don’t know the stage of gestation but it was a clearly identifiable little boy. The heartache, the trauma, the tragedy that ensued for the following week as we fought to get that baby transported back to Indiana so that the family could get closure, they could have a memorial service, and treat the remains and dignity and respect, that’s part of what this bill is about."

Lastly, if the woman does not make a decision regarding the disposition of her child’s remains, or decides for the abortion clinic or hospital responsible for their disposition, the bill requires that abortion clinics and healthcare facilities dispose of fetal remains properly, either through cremation or burial, without mixing their bodies with medical waste and refuse.

When drafted, care was taken to ensure that this would not overly burden abortion centers or hospitals to dispose of the unborn bodies, and the bill went through several revisions to help address concerns raised by those opposed to it. Measures were taken within the bill to ensure that this would impose no additional undue costs upon abortion clinics, including allowing prolonged periods of accumulation of remains and simultaneous cremation. Ultimately in the current version of the bill, the costs were estimated to be almost nonexistent.

During the hearing, Senator Bramble and others spoke at length about the various misconceptions about the bill, describing in detail what it did and did not do. What surprised me however is that even after extensive discussion, many people still seemed confused about the bill.

Many of those who gave testimony against the bill went on at length about how insulting they thought it was that women would be forced into disposing of the child’s body. One woman remarked how monstrous it was to force women to decide whether to bury or cremate their child, or to even discuss their rights with them.

Others, such as a pathologist who stated he represented Utah’s pathologists and physicians spoke about the importance of allowing women a no-cost option where labs and hospitals can dispose of the body. He went on about how he opposed mandating that all women bury their children, and seemed to think that the bill required that they do so.[7]

It still is puzzling to me that people were still so confused after we had spent the last half an hour or so going over the bill in detail, and I think to a significant degree this was the main reason there was so much opposition to this bill, because one would think that this was something that people on both sides of the issue of abortion would support. To give women who have had an abortion or who have miscarried the right to choose what happens to the body of her child and to ensure that those remains are disposed of in a respectful manner is something that we should all be able to get behind.

Ultimately, the bill passed 4–2, with Democrat senators Escamilla and Iwamoto voting against. Both felt it necessary to explain their vote, stating that they felt that giving women that choice, that providing a paper informing women that they had a right to decide what happened to their child would traumatize them. Iwamoto summarized their feelings on the bill during her ending statement:

“Similar to Senator Escamillia, I think, during my miscarriage which was started at my in-laws home and then in the hospital, I think I would have been traumatized by a piece of paper because mine was early on, and I would be asking, what are we burring, cause I was told that there wasn’t- that it was just blood.”
“This portion makes me feel like more than ever this is up to the individual to decide with their doctor and their religion and how they feel. It is not appropriate to label people for some way they think, so I wanted to sort of explain my position.“

Despite, or perhaps because of how often these bills are misunderstood and misrepresented, they are incredibly important.

It is imperative that we give women who have had an abortion or who miscarry the right to determine how the remains of the child are disposed of, if she so chooses. Parents should have the right to decide what happens to the body of their child, and this bill helps empower women and bring closure to those who have found themselves in unfortunate circumstances.

It is also important for fetal remains to be allowed to be transferred out of state. To be unable to bring the remains of one’s child home after suffering such a loss, as Senator Curt Bramble’s friend was, is something we should not wish upon any woman. By allowing fetal remains from miscarriage to be, we ensure that women who have suffered tragic losses may transport their children home for burial and find closure, so that they may start on the path to recovery.

Furthermore, while a lot of people feel strongly that, though abortion is something that no one ever wants, it is important for it to be legal I do not believe that anyone has any real desire for the remains of their child to be desecrated. Whether pro-life or pro-choice, whether one has miscarried or has had an abortion, I cannot imagine that this would be something people want.

By requiring abortion clinics and healthcare facilities to dispose of fetal remains properly, either through cremation or burial without mixing their bodies with medical waste and refuse, we ensure that these human remains are being given the respect they deserve. What we would not do to the remains of more developed human beings should not be done to the remains of these unborn children, and disposing of their bodies respectfully and in a manner consistent with the parents’ wishes should be of the utmost concern.

Utah's bill, and others like it, should be one of the areas that people on all sides of the abortion issue can agree on. If we can find a way to work together here, perhaps we can find a way to do so elsewhere as well.

Article Originally Published on The Lifeguard Initiative, 12 February 2020

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