Stillbirth and the law: options for law reform and issues for the coronial jurisdiction

In spite of its relative frequency, stillbirth is a phenomenon that has been relatively little discussed and requires further research for comprehensive clinical understanding. It impacts upon the legal system by way of the need to determine whether a life has come into being such that legal consequences such as criminal law, probate law and the coronial jurisdiction can attach to it. This requires contemporary clinically informed interpretation and application of the ancient "born alive rule" in respect of the ramifications of matters such as pulseless electrical activity in the heart, brain activity and agonal gasping. In the coronial domain, arguments have been put in South Australia, Victoria and Northern Ireland in recent cases and discussion has taken place publicly about whether coroners should be permitted to investigate and make findings and recommendations about cases of stillbirth. The article identifies merit in principle in such a development but highlights the need for care about such reform to the law lest it engender inconsistency in respect of important threshold definitions of "life" and "death" lest it generate incoherent approaches of the law on the subject, and lest it have unforeseen counter-therapeutic consequences for the grieving parents of infants who have been stillborn. It notes, too, that such a change to the ambit of coronial jurisdiction would have important resourcing ramifications.