By Maria Paula Croatto Massi1

There is a reality that is rarely spoken of due to the pain to express it, which is the reality of families or women who lose their children before they are born. Generally, people carry that burden in silence, and the healthcare system does not provide dignified support to the parents or offer dignified treatment for those children. According to the World Health Organization, it is essential for families to go through a healthy grieving process by being able to talk about pregnancy loss and receiving support from the healthcare system.2

In the province of Mendoza, Argentina, if a mother loses her prenatal child and the weight at delivery is below 700 grams, both public and private hospitals refuse to hand over the child’s remains to the parents, considering it to be pathological waste. However, if the fetus weighs more than 700 grams, the child is given to the families. Regardless of the child’s gestational age, the pain experienced by families who have lost a baby is equal. Therefore, equal treatment should be provided in the interest of fairness. 

In mid-2022, Senator Jésica Laferte introduced a bill in Mendoza called “The Right to Burial of Children Born Without Life.” This legislation aimed to provide a legal framework for addressing this common and heartbreaking situation. As a result, the Bill 3 sparked a nationwide debate, leading other provinces to explore the implementation of similar initiatives in their legislative bodies.

The bill is founded on principles of international human rights law, adhering to the guidelines and rights outlined in the National and Provincial Constitutions. It recognizes that every person has the right to one’s identity and a dignified burial, without any form of discrimination. 

Furthermore, the bill aligns with the National Law for the Registration of Persons4 and aims to establish a procedure in cases of fetal demise. It mandates the issuance of miscarriage or stillbirth certificates, enabling the burial of fetal remains in cemeteries. This procedure also allows parents and relatives to provide a name for the child, fostering a healthy process of mourning within the family, as advised by experts.5 

The bill also addresses situations in which parents or relatives choose not to request the remains of the miscarried or stillborn child. In these cases, the bill stipulates that the director of the healthcare facility is responsible for registering the person and arranging for the remains to be sent to the appropriate municipal public cemeteries, which must allocate specific areas for the burial of miscarried or stillborn children. 

This law places paramount importance on equal treatment for all individuals, as prescribed by Article 2 of the Universal Declaration of Human Rights: “Every person is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”6 

In accordance with Article 2, the bill acknowledges the right to burial for children who are born without life, whether due to a natural process or induced abortion.7 The latter holds significant importance, considering that the Argentine Congress has approved an abortion law. However, as stated in medical-legal terminology, abortion concludes with the expulsion of the fetus; the subsequent events are no longer governed by the abortion law. Hence, as mentioned earlier, the bill anticipates that these children will be included in the category of children who are born without life and remain unclaimed. 

The bill not only addresses the medical and legal aspects but also emphasizes the support and assistance provided to families during such a challenging period. 

Following the drafting of the bill, the civic groups that advocated for the visibility of this issue, after careful consideration, named the bill the Victoria Law.8 This name does not specifically refer to an individual’s name but rather symbolizes the achievement of being heard, as described by the involved parties. It signifies the victory of Peter, Mary, John, and every child who has passed away before experiencing life.9

The absence of regulations governing the actions of healthcare institutions in cases of miscarriage and stillbirth leads to dehumanizing situations. For instance, in the well-known case of Rafaela, approximately 241 bodies of miscarried and stillborn babies were preserved in jars between the years 2005 and 2020. 

These were the remains of individuals who, after passing away in the womb, underwent autopsy and pathological examinations to determine the cause of death. Subsequently, they were stored in the Pathology Laboratory of their respective hospitals until an NGO obtained judicial recognition of their right to burial through a court ruling.10 

To aid legislative officials in promoting this bill in their jurisdictions, we are sharing its text: 

VICTORIA BILL 

Article 1: Purpose 

The purpose of this law is to acknowledge the right to bury miscarried and stillborn children and establish standards for healthcare providers so that they offer appropriate support to families coping with the death of a child. 

Article 2: Terms and Definitions 

Fetal death: According to the WHO, fetal death is defined as “the demise of a product of conception before its expulsion or complete removal from the mother’s body, regardless of the duration of the pregnancy. Death is confirmed when the fetus, upon separation, does not exhibit any signs of life, such as breathing, heartbeat, pulsations of the umbilical cord, or voluntary muscle movements.” 

Right of Burial: The right of burial includes making the bodies of miscarried and stillborn children available to parents, relatives, and authorized individuals, ensuring the dignified treatment of the bodies from birth to burial. It also ensures unclaimed fetal bodies are provided access to a proper burial. 

Article 3: Authorization 

Any parent, relative, or person with a legitimate interest shall have the right to claim the following: the right to burial, the death certificate, the registration of fetal death, and the burial license for the remains to be buried. 

Article 4: Implementing Authority 

The Ministry of Health, Social Development, and Sports of Mendoza shall have the authority to enforce this law. 

Article 5: Possibility of giving a name. 

Those with the authority to claim the remains shall have the right to give the child a name, which will be recorded on the death certificate, following appropriate practices for perinatal and neonatal care. 

Article 6: Administrative Procedures 

For promptness, the healthcare professional responsible for issuing the death certificate must do so and upload it into the digital system using their digital signature. This is intended to enable the authorized party to immediately obtain the fetal death registration and the corresponding burial or cremation license, thus making the process efficient. In cases where, for various and valid reasons, authorized individuals decide to offer the child’s body for investigation, they may provide it to the healthcare facility by means of an informed consent document. 

Article 7: In cases where, for various and valid reasons, none of those entitled to claim the remains of the miscarried or stillborn child, then the administrators of hospitals, prisons, or other public or private institutions are responsible to register the child’s death. This registration must also be completed digitally to ensure a prompt response and subsequent burial or cremation. 

Article 8: In such cases, healthcare institutions shall retain the bodies of the miscarried or stillborn children until the designated personnel coordinate with the cremation or burial services within a timeframe determined by the institution, which shall not exceed one week. The remains of the unclaimed children shall then be transferred to designated graves for the purpose of burial. The province must make provisions for these graves, either through its own means or in collaboration with municipal governments or private cemeteries. 

Article 9: Prohibitions 

Since the enactment of this law, it is prohibited to deliver the bodies of miscarried or stillborn children in boxes or jars or to handle or treat them as pathological, pathogenic, or infectious waste. 

Article 10: Regulation 

Once this law is passed, the Executive Branch shall have a period of ninety (90) days to regulate the law, issue the prescribed protocols, and implement them. 

Article 11: Municipalities 

This law is of public order and shall come into effect from the date of its publication.

To read this report in Spanish, translate our website using the translate option within the side menu, or download the it here.

  1. Lawyer. Member of Vae Victis. Association for life, family, and culture. ↩︎
  2. See WHO report: Why it is essential to talk about the loss of a baby. Available at: https://www.who.int/es/news-room/spotlight/why-we-need-to-talk-about-losing-a-baby ↩︎
  3. Registered as bill number 78403 in Mendoza, in 2022. https://www.senadomendoza.gob.ar/consulta-de-proyectos/ ↩︎
  4. Law 26.413 Civil registry and legal capacity of individuals. Full text available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/145000-149999/145345/texact.htm ↩︎
  5. Rituals in perinatal grief: the importance of farewells. Sabina del Río Ripoll, Perinatal Psychologist. Available at: https://www.funespana.es/rituales-duelo-perinatal/ ↩︎
  6. Full text available at: https://www.un.org/es/about-us/universal-declaration-of-human-rights ↩︎
  7. News article highlighting that aborted children deserve the same treatment as a baby who has died from natural causes, available at: https://www.perfil.com/noticias/sociedad/la-ucr-presento-un-proyecto-para-que-los-fetos-sin-vida-tengan-un-trato-digno.phtml ↩︎
  8. This word holds more meaning in Spanish. “Victoria” is both a proper name and the word used for “victory.” Therefore, the bill upholds the word “Victoria” as the name of the law, while also alluding to the victory of stillborn children. ↩︎
  9. News article explaining the bill’s denomination as the Victoria Law: https://ciudadano.news/politica/ley-victoria-el-proyecto-que-contempla-un-trato-digno-para-fetos-sin-vida ↩︎
  10. Posetto Pablo Cesar, Duty to register fetal deaths and the right to burial published in El Derecho – Cuadernos Jurídicos de Derecho de Familia, Number 98 Date: 22-10-2021 Digital Citation: ED-MMXXXIX-272 ↩︎

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