What Kentucky law says — and doesn’t say — about what to do after pregnancy loss
Several Kentucky women have been charged in recent months with concealing the birth of an infant and abuse of a corpse. The circumstances varied — one took abortion medication, one gave birth secretly to a fetus of unknown gestational age, one was charged a year after reporting a miscarriage and another was charged 30 years after fetal remains were found in a dumpster.
Their charges also vary. One couple is charged with reckless homicide. The woman who took abortion medication was improperly charged with fetal homicide during expedited proceedings even though that charge does not apply in cases of abortion care.
Little information has been released so far about any of the cases. But the through line — the charges of concealing the birth of an infant and abuse of a corpse — prompted a question: What does Kentucky law say a woman should do if she has a miscarriage? Does it explain what she should do to avoid breaking the law? Here’s what the law says.
Reporting falls on providers, not patients
Kentucky law does not criminalize pregnancy loss or require a person to call police after having a miscarriage. And state statute does not outlaw taking abortion-inducing medication, even though nearly all termination procedures by providers are banned.
However, recent cases show some women are being charged in Kentucky with concealing the birth of an infant, even as police and prosecutors do not release additional information, such as the circumstances or gestational age of the infant.
And it’s not just Kentucky: Pregnancy Justice, a nonprofit that defends the rights of pregnant people, identified 58 prosecutions nationwide between 2006 and 2024 related to how people navigate the aftermath of pregnancy loss, including the handling of remains from a miscarriage or stillbirth.
Kentucky law does not require women to preserve or turn over fetal tissue to law enforcement when they have a miscarriage. As for burying fetal remains, the burden to report and follow specific rules falls on funeral homes and health care providers.
There is no statute criminalizing a woman’s decision to manage her pregnancy loss at home or directing how she should handle the remains unless there is other evidence of another crime, such as violence against a child who was born alive.
Most fetal death reporting laws in Kentucky apply to health care providers, not patients. One statute, KRS 213.096, outlines how “birth-death or stillbirths” should be reported to the state.
“If the fetal death occurs in a hospital, the person in charge of the institution or the person’s designated representative shall complete the stillbirth certificate, obtain the medical certification, and file the certificate with the state registrar,” the law reads.
The law, amended in April 2022, requires “fetal deaths” at 20 or more weeks needs a birth, death and/or stillbirth certificate. The law was originally created and enacted in the 1990s.
Kentucky law defines “fetal death” as “death prior to the complete expulsion or extraction from (the pregnant person) of a product of human conception, irrespective of the duration of the pregnancy” and explicitly excludes abortion.
When a birth occurs outside a health facility, state law requires a provider in attendance to register the birth. In the absence of a health care provider, state law suggests a midwife or “any other person” in attendance of the birth record the birth.
If neither parent is available, the burden shifts to the “person in charge of the premises where the birth occurred or to the health facility the child went to after the birth.”
Another statute requires health care providers, upon performing an abortion, to submit a report to the Department of Vital Statistics, a state government agency responsible for registering, maintaining and issuing certified copies of vital records, including births, deaths, marriages, divorces and fetal deaths.
That law predates the state’s abortion ban, passed in June 2022, that outlawed nearly all pregnancy terminations in Kentucky after the Supreme Court overruled Roe v. Wade, which ensured the procedure was protected medical care nationwide.
How police and prosecutors are charging women anyway
Several of the laws, or lack thereof, in Kentucky — such as not criminalizing pregnancy loss or needing to call police after a miscarriage — apply no matter the gestational age of the fetus.
But others apply only to a person’s first 20 weeks of pregnancy. Things become a bit less straightforward after that.
For the women currently facing charges, neither police nor prosecutors have said how far along their pregnancies were. The two charges each woman faces — concealing a birth and abuse of a corpse — were enacted in 1975 for situations like hiding a dead newborn or mistreating human remains.
With no additional law in place, it is unclear what women who have miscarriages or still births outside a hospital setting are expected to do with fetal remains in the eyes of Kentucky lawmakers and law enforcement.
In a statement from Kentucky State Police, the primary charging agency for several of the recent cases, the agency said it relied on the help of other parties to determine charges.
In the case of Melinda Spencer, in Wolfe County, who was improperly charged with fetal homicide, state police said they made the decision to charge with the help of Commonwealth’s Attorney Miranda King, who identified herself as a “pro-life prosecutor.”
“While law enforcement is listed as the charging agency because they make the arrest(s) and transport the suspect(s) to jail, charges brought forward are made collectively with commonwealth and county attorneys, coroners and other agencies — not at the sole discretion of law enforcement,” KSP spokesperson Sherry Bray said in a statement to the Herald-Leader.
When pressed further about what the law says about burying remains, Bray recommended the Herald-Leader “contact a medical provider, the commonwealth’s attorney, or the Kentucky General Assembly.”
State police did not agree to a telephone or in-person interview for this story.
The Herald-Leader asked the same question of Bradley Pierce, the president of the Foundation to Abolish Abortion, a group that lobbies for abortion to be treated like a homicide.
Pierce said women who experience a miscarriage or still birth typically seek medical care, which would “ensure they cannot be accused of wrongfully concealing the birth of an infant.”
However, early pregnancy loss does not necessarily require medical care, according to the American College for Obstetricians and Gynecologists.
Some women can experience “expectant management,” where pregnancy tissue passes naturally without medication or surgery.
New laws could close loopholes in pregnancy loss protections
Several bills under consideration by the General Assembly this year would seek to tighten laws related to abortion and pregnancy, and make the punishments in such cases more severe.
In addition to his work with the Foundation to Abolish Abortion, Pierce is a lawyer, and he wrote wrote House Bill 714, introduced in the legislature in February.
If enacted, the bill would expand Kentucky’s homicide statute to include the death of an unborn child.
“Under this legislation, murdering anyone would be made illegal for everyone, ensuring that all humans made in the image of God are equally protected in accordance with the Kentucky Constitution, the United States Constitution, and the Law of God,” a news release announcing the bill read.
“House Bill 714 would simply apply the existing murder and assault laws already protecting born people to safeguard the lives of preborn people as well,” Pierce said in an email interview with the Herald-Leader. “The murder laws in Kentucky exist to deter murders from happening in the first place, and House Bill 714 would simply ensure that the murder of preborn babies is similarly deterred.”
Another bill, House Bill 646 would criminalize mailing, distributing or importing “abortion-inducing” pills, punishable by a Class D felony.
That bill also would require providers to give a mandatory written notice to patients who they believe are experiencing complications due to abortion medication.
The written notice would explain potential civil causes of action against the “manufacturer, distributor or prescriber” of the abortion medication and health care providers who fail to advise complications of the drug.
Some Democrats, meanwhile, have filed legislation to protect medical privacy and prevent criminalization of those who seek reproductive health care outside of Kentucky.
Rep. Lindsey Burke, D-Lexington, filed a bill that would establish protections against criminal, civil or administrative penalties for people receiving abortion care where it is legal. Her bill, House Bill 23, also puts safeguards on medical records used to prosecute patients and providers.
