111 Iowa L. Rev. 949 (2026)

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Abstract

Increasingly, pregnancy loss, especially stillbirth, is ending with arrest. Anticriminalization efforts are often focused on repealing the “fetal personhood” laws that encouraged or enabled the arrests. This Article argues, however, that repealing the laws is, at best, an incomplete solution, doing little to address the inclinations underlying criminalization.

Anticriminalization efforts must instead be more holistic. First, a focus is needed on rewriting the dominant cultural scripts that lead to suspicion and blame after stillbirth—scripts that stillbirth is exceedingly rare (it’s not, it’s surprisingly common), and that good mothers grieve appropriately (again no, the script ignores the influence of trauma). Second, anticriminalization efforts must include a push to standardize medical care for stillbirth, leaving less room for bias-influenced variable care. Both awareness of the realities of pregnancy loss and standardized medical care can help alleviate health care providers’ inclination to call the police. 

Finally, repealing fetal personhood laws is not only an incomplete solution, but also harmful. Repealing these laws devalues the lived experience of those whose unborn children are killed by tortious or criminal actors, a perspective that is often lost within the push to protect abortion rights. Instead of repeal, the legal inapplicability to pregnant people must be affirmed, and private causes of action can be created to empower those whose pregnancy loss ends in criminalization.