The nation’s largest organization for medical examiners has issued a warning about a controversial, centuries-old forensic test that has contributed to cases in which pregnant women have been charged with murder.
The premise behind the lung float test is simple: If a baby was born alive and then died, air from its first breaths would cause its lungs to float in a jar with water. If the baby was stillborn, the lack of air in the lungs would cause them to sink. But the many critics of the test have long labeled it junk science and drawn parallels between the test and witch trials, where women were deemed witches based on whether they floated or sank.
The National Association of Medical Examiners addressed the lung float test as part of a larger position paper released in October on investigating perinatal deaths, including stillbirths. A panel of 11 experts said the test has “known pitfalls” and is of “questionable value” and “without clearly defined error rates.”
“Those who use the lung float should be wary of accepting the results when it conforms to their summation of the findings and rejecting the result if it conflicts; a ‘test’ used in such fashion inevitably becomes more dangerous than useful,” the authors wrote.
The paper follows a 2023 investigation by ProPublica into the use of the lung float test in cases where women were charged with murder despite their claims that they had a stillbirth. ProPublica found that the test was deeply flawed, lacked the basic standardization of trusted forensic disciplines and did not have full support from any of the country’s 12 largest medical examiners’ offices.
The test is typically used where someone gives birth outside of a hospital or without medical supervision. But the paper cautioned that the distinction between a liveborn and stillborn infant can be very difficult to discern. Other than food in the stomach, the authors wrote, there is no diagnostic tool or finding that can “stand alone as the sole determinant of whether an infant was liveborn or stillborn.”
Because a determination of livebirth or stillbirth may result in criminal charges, the paper’s authors wrote that a high degree of certainty is required. They concluded that if the autopsy and investigative findings do not provide “clear and convincing evidence of live birth, it is recommended to default to a designation of fetal death (stillbirth).”
Dr. Reade Quinton, the president of National Association of Medical Examiners and an associate professor of pathology at the Mayo Clinic, said he thinks this is the first time in the association’s nearly 60 years that it has issued a position paper that includes a statement on the lung float test. The paper is expected to be published next year in the American Journal of Forensic Medicine and Pathology.
“We hope that this paper will provide guidance on how to address these complex cases,” he said.
In another response to ProPublica’s investigation, a group of medical and legal experts convened a study group to examine the lung float test and determine whether it should be used in court. That effort is ongoing.
At the time of ProPublica’s investigation, Dr. Odey Ukpo, the chief medical examiner in Los Angeles County, said his department did not use the lung float test because it was “unreliable and inaccurate.” He said this month that his office remains committed to “evidence-based medicine” and that the position paper “exemplifies that forensic medicine is aligned with those practices.”
Some medical examiners who use the test have said they worry they will be criticized for not doing it since it is often included in forensic pathology training. The paper makes clear that there is “no reason to mandate its performance.” It also underscores the lack of data around the test and the wide variation in how it is performed.
The paper’s findings are particularly relevant in the wake of a growing concern around criminalizing pregnancy loss following the U.S. Supreme Court’s decision to eliminate a constitutional right to abortion.
In September, the New York-based nonprofit Pregnancy Justice released a report that examined prosecutions in the two years after the Dobbs decision. During that time, more than 400 people were charged with pregnancy-related crimes, including 31 who had a pregnancy loss. That, according to a release about the report, treated “miscarriage and stillbirth as suspicious events rather than personal, medical experiences.”
ProPublica’s 2023 investigation examined the case of Moira Akers, a Maryland mother who was charged with murder and child abuse. She was sentenced to 30 years in prison after prosecutors cited a lung float test as part of the evidence against her. Akers had insisted that her baby was stillborn.
“These lungs floated,” the prosecutor said during closing arguments. “They floated because this child had breathed and was alive after he was delivered at home that day.”
In February, the Maryland Supreme Court granted Akers a new trial, though it didn’t rule on the use of the lung float test and instead focused on Akers’ abortion search history and lack of prenatal care. A spokesperson for the Howard County state’s attorney’s office did not answer questions about the position paper or whether prosecutors plan to use the results of the lung float test at Akers’ new trial, which is scheduled for June.
ProPublica also wrote about Latice Fisher, who had delivered her baby in the toilet and told her husband, who then called 911. The medical examiner in Fisher’s case performed the lung float test. Parts of the lungs floated and parts didn’t. The medical examiner ruled that the baby was born alive and died from asphyxiation. A grand jury indicted Fisher on second-degree murder charges.
Fisher’s attorneys wrote to Scott Colom, district attorney for the 16th Circuit Court of Mississippi, about the test’s shortcomings, prompting Colom to do more research. He dismissed the charges against Fisher in 2019 and then presented the case and details about the lung float test to another grand jury, which chose not to indict her.
The position paper, Colom said, provides much-needed guidance around the test, especially in areas like his, where people have been wrongfully prosecuted and medical examiners are not always forensic experts.
“It’s important that we now have clarity on it,” he said. “Once the momentum gets towards a prosecution, it does take a bit of courage to stop that train and go back in another direction.”
