It is the most tragic situation expectant parents can experience: a miscarriage or stillbirth.

Sometimes these situations require hospital care. There the parents may suddenly face an important question about how their baby’s body is laid to rest. For example, can the parents take their baby’s remains home from the hospital for burial?

The answer is not always as clear as it should be.

In the law, there is a legal difference between “miscarriage” and “stillbirth.” Generally, a miscarriage is a death occurring before 20 weeks gestation, while a stillbirth is a death occurring at or after 20 weeks gestation. But individual state laws may draw that line anywhere from 16 to 24 weeks gestation. The distinction is important because requirements following a fetal death may vary for miscarriages versus stillbirths. To reduce confusion, we have simply used the number of weeks in our Law & Policy Vault summaries.

Some states specifically allow parents to take custody of the child’s body, referred to as “fetal remains,” and to direct or control the final disposition (e.g. burial, cremation). In some of these states, hospitals are required to notify parents of this right (sometimes in writing), and parents may be required to notify the hospital of their decision within a specified time limit.

Other states are less explicit, but they at least clarify that the final disposition must be authorized by the parents in order to occur. Some states allow parental rights to be affected by individual hospital policies.

Some other states fail to adequately address the issue at all. There, parents should still be able to direct the final disposition under laws generally regulating the disposal of dead bodies. In nearly every state, parents are usually first in line to direct the disposition of a child’s body.

While this is rarely an issue, there have been situations where our members have encountered difficulty in exercising their right to decide the disposition of the remains of their child who dies before birth. Thankfully, all have been resolved successfully.

Other issues may also arise.

One requirement is that certain fetal deaths must be reported. This is essentially just the filing of a death certificate for an unborn child. Generally, this filing is done by the primary health attendant and not the parents.

Once this is accomplished, parents are usually allowed to request a copy of the certificate for their own records.

When it comes to actual disposition after a stillbirth, many states require the parents to obtain a burial-transit permit or a similar set of permits allowing the body to be removed and buried or cremated. Funeral homes generally assist with this process.

Parents should also be aware that many states require the coroner to determine the cause of death for fetal deaths which occur outside of a health institution. This is typically a formality and not intrusive.