Parents Guaranteed Right to Bury Stillborn Babies

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When Erica Raef learned 13 weeks into her pregnancy that her unborn child no longer had a heartbeat, she was devastated. But when she and her husband, Joshua, began making the difficult plans of delivering and burying their baby — whom they named Liam — they were dealt an unexpected burden on top of tragedy.

A doctor told the Amarillo couple that if Erica Raef delivered in a hospital, then they wouldn’t be able to take Liam’s body for burial. Texas law did not allow hospitals to release the remains of stillborn infants less than 20 weeks old, they were told.

Although the couple believed delivering in a hospital was safer, they chose to do so at home so they would be able to bury Liam. Hours after miscarrying at home, Erica Raef began bleeding uncontrollably. She passed out on their bathroom floor, and Joshua Raef rushed her to the hospital.

“It was a very traumatic experience that I wouldn’t wish on anyone,” Erica Raef told a Texas House committee in April as she fought back tears. “This is ultimately why we are here today, to make sure this doesn’t happen anymore.”

And starting Sept. 1, it won’t. Moved by the Raefs’ story, lawmakers passed House Bill 635, which guarantees parents the right to the remains of their unborn children, regardless of how small they are.

Texas hospitals have had different policies on releasing fetal remains. Many will give the remains of stillborn infants to parents if asked, but some interpret state law to classify fetal remains less than 350 grams as "medical waste," said Charles Bailey, a lawyer and senior vice president with the Texas Hospital Association.

"There were some established laws with respect to how you would handle fetal remains above a certain age and above a certain weight," said state Rep. Walter "Four" Price, R-Amarillo, who authored HB 635. "But it was not as clear and hospitals had different policies with respect to anything that fell outside those ranges."

The hospital association supported HB 635, which the Texas House and Senate unanimously passed, because it clarifies the law and allows hospitals to honor parents' requests, Bailey said.

"We want to be sensitive to the wishes of parents," he said. "This just clarifies that hospitals will be able to honor those wishes."

Most hospitals already allow fetal remains to be released to parents, Price said. Neither the hospital association nor the Department of State Health Services could provide specific numbers on how many hospitals had a policy forbidding the release of fetal remains below 350 grams, but Price said he thinks stories like the Raefs' are more common than one might think because most people do not discuss them.

Speaking to state lawmakers in April, Joshua Raef said, “I know that’s maybe a minority of hospitals in the state” that forbid the release of fetal remains below 350 grams. “But for us, it was everything.”

Dr. Moss Hampton, who leads the Texas branch of the American Congress of Obstetricians and Gynecologists, says that in such cases, it's always safer for a mother to deliver at a hospital. Hampton said that mothers can have dangerous medical complications. Also, if the miscarriage occurs at home, a doctor could have trouble determining the cause prevent it from happening again.

“From a physician’s standpoint, you would like everyone to deliver in a hospital,” Hampton said.

Although the Raefs knew delivering at home could be dangerous, Joshua Raef said they did not regret their choice.

"In the end, going through all that, it was still worth it to have our baby to bury," he told lawmakers.

When state Sen. Jane Nelson, R-Flower Mound, the bill's Senate sponsor, introduced the legislation in a committee hearing, she said the Raefs' story moved her to tears. 

"This is a bill we need to pass," Nelson said at the Senate hearing. "That's the goal of this bill — to ensure that a parent has the opportunity for a proper burial of their deceased child."

The Raefs, who have three children, drove seven hours to testify before lawmakers in support of the bill. 

“If this law can help even one family grieve for their child in the manner they choose, we feel like it is a great success,” Joshua Raef told the Tribune in an email.

Disclosure: The Texas Hospital Association is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.