Duke Medical Ethics Journal

Criminologist Leon Radzinowicz noted that the “statute was one of the few in English criminal law which were framed contrary to the principle of presumption of innocence” [8]. Ultimately, these women were guilty until they could prove their innocence, implicitly requiring them to either be married, or have their birth witnessed in case it was a stillbirth. The act ends with: “In every such Case the said Mother so offending shall suffer Death as in Case of Murther, except such Mother can make proof by one Witness at the least, that the Child (whose Death was by her so intended to be concealed) was born dead” [1, 2, 8]. 

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Records show that 22 women were acquitted from the charge just for having a witness attest that they were married [8]. Women who were known to be married at the time of concealing their stillborn were charged with a different crime, with only eight indictments in the same period as the 200 Concealment Act charges, with three women being acquitted for accidental deaths, and two for being deemed “out of their senses” and not responsible [8]. 

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Because the law ultimately then does not look at the cause of death so much as the act of Concealment, one of the defenses most frequently used is known as “The Preparation Defense” which said that women could attest to preparing for the birth with witnesses or proof, like in having baby clothes, or having a room prepared for the birth [7, 8]. On the other hand, the hiding of a pregnancy was largely viewed to be an intention for murder if the baby was later found to be dead, regardless of whether there was actually proof of cause [7]. Scholars have interpreted the Act to highlight the apparent moral contradiction, as the death of a child could be “justified” if the mother was married, but “unjustified” and fundamentally insidious if the birth was illegitimate.

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I turn to this act as a case study to think about how birth was observed. This law was made in response to a societal shame believed to be so strong that it could be driving women to kill their children and therefore needed legal intervention so as to avoid it. Ultimately, the law became one of criminalizing “Concealment”, criminalizing those who were the subjects of imposed shame, and was about whether the birth was viewed within norms observed, regardless of what happened during the birth or after. Women were being driven to give birth in private but then also did not have the privilege of privacy. 

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Long after the end of this law in 1803, Lennard’s photo series openly invites observation into the act of birthing, reclaiming women’s choice in where and how observation of their experience is possible [5]. The women have blood on their hands in these photos, evidence as the agents of creation and the autonomous agents of their observation. As Lennard writes in her artist’s statement, the photos juxtapose “undisturbed amongst varying palettes of chaotic, cinematic disturbed” [5]. She explained that “upon conceiving the series [she] quickly became focused by the idea of creating images we have never seen” and bringing the act of birthing itself back into the spotlight, as opposed to the stigma associated with it [5]. For her, she is not forced into witness, but invites it: “I wanted to picture that which we have lacked the opportunity to witness, either because the nature of the scene is taboo, unusual, or simply obscured by the focus on an overly dramatic or exclusively-medicalised depiction of birth we see in mainstream TV, movies etc.” [5].

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The series includes historical figures in the act of childbirth, demonstrates spaces that have shaped childbirth, and even displays birth phenomena like the “fetal ejection reflex”, or the water birth, that all together create a nuanced, layered look at birth. The series does not require a specific lens for understanding the pieces. Rather, the series focuses on the power and autonomy of the person giving birth. There are photos from a hospital room just as there are photos inspired by The Farm, a community where births happened in school buses employing the midwifery principles of Ina May Gaskin. 

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One of the most controversial images is called “The Creation of Man” (2017) and depicts biblical Mary giving birth to Jesus in a standing position in the manger of the Western depiction of the nativity scene. Lennard describes her as the “Omniscient image” of the Virgin Mary but one who has never been depicted in birth, an omniscient image about birth without the actual birth [5]. 

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Lennard even included a scene from English history. In her piece entitled “Royal Blood” (2018), she depicts Queen Elizabeth II during her final home birth in 1964 (50 years before Lennard gets her idea for the series from her own home birth). Lennard describes: “This photo recreates and spotlights the elusive revelation that the Queen broke several traditions in Royal birthing history: to be unobserved, and to have her husband, Prince Philip at her bedside, the first male Royal partner in modern history to be present at a delivery” [5]. She is unobserved by the public, when Lennard notes that previously there was a tradition of more observance, and yet she has her husband observe when traditionally he would not have been there [5]. It encapsulates a  “birth observed and yet undisturbed”, because she gets to choose the conditions of observance, so as not to be disturbed by them. This birth became in part remarkable for the Queen’s autonomy: choosing to stay conscious, choosing to have her husband there, refusing to switch to a different room, and refusing to have more observers.  

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Finally, we turn to Lennard’s own story, the one that

inspired the photo series [6]. At the time, Lennard had

been told a doctor would need to be there to certify

death or in order to conduct a postmortem, yet Lennard

chose to not have the doctor there to certify death at

the moment [6]. Lennard had given birth feeling

empowered because she had planned it the way she

had wanted. Even with Evan’s diagnosis, she made

decisions about the birth itself that would optimize the

experience for her and for him, that would allow her to

grieve but to celebrate the birth. She uses items from the

births of her children (two more after Evan), in her pieces

in this series about the “birth undisturbed” [5]. Of course

Evan’s fatal condition was non-negotiable, but at the stark

other side of the spectrum from the Concealment Act,

Lennard’s stillbirth was for her, an opportunity to be proud

of his birth and what she could provide for him. 

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Now that the photo series has ended, and we come upon this anniversary year of 2024, ten years for Lennard and 400 years for the Concealment Act, what should we do next? The near future grants us the time to raise the ethical questions of what we could and should do. Lennard notes in a video that she uses birthing metaphors for her creative work, a “labour of love” in her artist’s statement, but also the birth of the idea and others [3, 5]. With a vocabulary for a “birth observed and undisturbed”, I believe future directions do turn to creative processes that can be generative and productive to reinforce the empowerment of an autonomy-granting “bringing into the world”. Lennard writes about the benefits of her narrativizing her birth stories as an advocate for narrative medicine [6]. 

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In addition, we look to these examples as not only interesting evidence for these ideas, but as ethical questions for the future. With immense disparities in healthcare by race, socioeconomic status, gender, and more, no sweeping claims about what a birth should look like seem fitting or even possible. There are privileges to certain elements of privacy and observation that are not equally available as resources to people giving birth. These examples need to be modified to include people giving birth from more backgrounds, but the hope is that in these very specific examples, people who choose to give birth should also get to choose how they are the agent of the birthing process, not objectified or a subject of birth. We are at a confusing and pivotal moment for these ideas, whether it be because abortion laws are changing across the United States—increasing the scope of “concealment” to abortion—but also more subtle changes, such as the creation of birthing videos for social media, and more vocal stories about postpartum life in blogs, advice, or even news stories. If observation and disturbance can be attended to as vehicles to help improve access to the infrastructure and resources necessary for more people, especially people more at-risk in birth, to give birth safely, then that is what this should aim to accomplish. If the recognition of observation can decrease stigmas, empower, and create a more inclusive lens on birth-giving, then it is important to consider.