Purvi Patel’s conviction is a travesty against women

Like Purvi Patel, the Indiana woman recently sentenced to 20 years on charges of feticide and child neglect, I once suffered the loss of a pregnancy. Like Patel, I hid my pregnancy, although when I felt the first waves of cramps and my uterus turned inside out, I began to weep for the loss of a child I didn’t even know I wanted. I remember pain, fear, confusion — and the utter loneliness of a blood-clotted white porcelain toilet bowl in a strange hotel in a foreign country. No one was with me. I cleaned up the mess and, as the blood continued to flow, tried to sleep.

Ten years later I gave birth to a son in my home in Venice Beach, California. The labor was quick but painful, because my son was in a difficult birthing position. I had the support of a doula, a midwife, an assistant and my husband — but my son’s birth was still terrifying.

Somewhere between my two experiences lies Patel’s story: not just a miscarriage, but a birth navigated alone, without support. Patel delivered a stillborn baby prematurely at home in secret, with no one in attendance. She would not have known what to do even if her child had been born alive; when to cut the cord or how to clear the baby’s airways had there been an obstruction. It wouldn’t have mattered anyway. As others have demonstrated, it’s likely that her 23- or 24-week-old fetus would not have had sufficiently developed lungs to breathe without a neonatal unit immediately on hand.

The legal details of Patel’s conviction — the antiquated and scientifically unproven evidence used to convict her, the bias of key medical witnesses who were produced as so-called experts but testified outside of their field, the contradictory nature of the feticide charge (which suggests the child must have died in utero) and the child neglect charge (which suggests the child was born alive and died because of her actions) — have already been eloquently and thoroughly examined in the press.

What I’d like to address is the troubling implications of Patel’s conviction: It essentially equates the traumatic miscarriage of an unwanted child with murder, thus providing us with yet another terrifying piece of evidence in support of the conclusion of an earlier piece I wrote on the criminalization of America’s mothers. One doesn’t need to be a medical expert to deduce that Patel’s actions — hiding a pregnancy, giving birth alone, concealing the dead fetus in a dumpster and then going to the emergency room in a state of severe physical distress — constitute a physically, mentally and emotionally painful experience. She needs psychotherapy and treatment, not because she is exceptionally disturbed, but because no one could have endured this experience without suffering trauma. The lack of compassion for a confused and suffering new mother who has endured horrific loss is what has drawn the international press to this story, disgusted by the inhumanity of America’s anti-abortion laws.

Patel was convicted for attempting to protect her own privacy clumsily and inadequately. She was convicted for not knowing her rights. She was convicted for failing to seek medical care for a pregnancy she did not know whether she wanted. She was convicted for expressing doubts about her desire or ability to birth and raise a child outside of marriage. She was convicted for not knowing that she could have a legal abortion and for contemplating an illegal one. She was convicted for living in a country that makes access to legal abortion nearly impossible in certain areas.

Patel is not being convicted for killing — or intending to kill — a baby. She is being convicted for being his mother.

When I was pregnant, I ate sushi and salami and occasionally had a sip of beer. If my son had died in utero or been stillborn, would I have been convicted too? 

“We’re heading toward this Margaret Atwood-like society,” Emma Ketteringham, the director of legal advocacy for National Advocates for Pregnant Women, is quoted as saying  in a 2012 New York Times Magazine piece on so-called bad mothers. She continued:

The idea that the state needs to threaten and punish women so that they do the right thing during pregnancy is appalling. Everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women. It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.

It starts with cocaine, and then it’s cigarettes and alcohol. How much alcohol? And when? It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your SSRIs [selective serotonin reuptake inhibitors, or antidepressants] during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?

This is a nightmarish scenario that hundreds of women find themselves in, as Lynn M. Paltrow, the executive director of National Advocates for Pregnant Women, and Jeanne Flavin, a sociology professor at Fordham University, detailed in their op-ed in the Times last year. Their piece was based on their study of forced interventions on pregnant women between 1973 and 2005, who were arrested for ingesting alcohol, drugs or unprescribed abortion pills or even for refusing recommended C-sections. There are more recent examples. In 2010 in Iowa, Christine Taylor accidentally fell down the stairs and was charged with attempted fetal homicide after she went to the hospital to check on her baby. Last year, Bei Bei Shua, who attempted suicide while pregnant, narrowly dodged a feticide charge in Indiana.

If I had been found to have used methamphetamine or heroin when my son was gestating, he would probably have been taken away by child protective services, my legal and physical custody of him terminated. I would doubtless have been arrested and prosecuted for actions taken during pregnancy that harmed my child.

But what about my son’s father? What if he used the same drugs during my pregnancy? I would probably be held responsible for the violation of my son’s safety by the Department of Children and Family Services and both of us could lose custody of our child. So if I used drugs, it proves to society that I, like Patel, was a deeply flawed woman who was less valuable than the child I was nurturing in my womb and responsible for the consequences. In contrast, if the father of my child used drugs, he would not be prosecuted retroactively for endangering his son or me while I was pregnant. He would not suffer consequences for the pain he put us both through. He might even have been able to convince a judge to give him equal custody, his sins of the past forgotten, because family court requires only proof of competence (or incompetence) in the present. Like the father of Patel’s baby, whose privacy is protected while Patel’s is dragged through the courts with scant regard for the medical care and compassion she needs in order to heal, men are held to a different standard when it comes to their unborn children. They are legislators who can dictate to women how we must behave during pregnancy and cast judgment on our choices.

Meanwhile, we are being convicted, in America, for being mothers.