By: Gillian Calder, University of Victoria, Faculty of Law.
Gillian’s forthcoming article, Legislating Emotion, Reading Grief: Bereavement Leave for Miscarriage and Stillbirth in New Zealand Law, will appear in issue 45:2 of the Dalhousie Law Journal.
You will grow up differently, in the love I will always have for you. You will grow up elsewhere, among the murmurs of the world, in the Mediterranean, in Sasha’s garden, in the flight of a bird, at daybreak, at nightfall, through a young girl I will meet by change, in the foliage of a tree, in the prayer of a woman, in the tears of a man, in the light of a candle, you will be reborn later, one day, in the form of a flower or a little boy, to another mother, you will be everywhere my eyes come to rest. Wherever my heart resides, yours will continue to beat.
Valérie Perrin, Fresh Water for Flowers[1]
Amongst the many transformations that the COVID-19 pandemic has wrought, one that is likely to leave a lasting impact on us all is the way that grief has become an almost constant companion. Loss is everywhere; in the profound experience of the death of a loved one, at the heart of cherished novels,[2] as well as in the simple and the day-to-day of missed celebrations and events. For those of us working within legal structures, this has also been an important moment for witnessing the role that law has been asked to play in addressing the shifting contexts of crisis.
So, it is as a form of meditation on grief that I turned my attention to a 2021 news story, out of New Zealand, asserting they had become only the second country in the world to offer bereavement leave for pregnancy loss.[3] As I watched the story being picked up by mainstream media throughout the world, I became curious about what might underlie the fascination with this tiny change to a tiny law in a tiny country. And I began that exploration[4] wondering what I might learn about this new law through a perspective grounded in the “law and emotions” literature.[5]
In March of 2021, New Zealand’s parliament passed amendments to their employment standards legislation, the law that governs annual leave entitlements for all employees working in New Zealand.[6] These amendments changed entitlement to bereavement leave, that is the time away from work that employees have a right to access at the death of a family member. The new provisions broaden what it means to suffer a bereavement; they are inclusive of pregnancy loss, for the employee whose pregnancy has ended by stillbirth or miscarriage (their partners and other intended parents).
For most jurisdictions in the world, including Canada, the definition of bereavement leave is tied to a much narrower and normative understanding of the nuclear family. On a first and simple glance, thus, this new law in New Zealand is a good and compassionate change; one that makes visible a life event and human experience that is too often shrouded in secrecy, silence and stigma.
What a lens that centres law’s capacity to script emotion also makes visible, however, is that this is on its face a gendered law. It is inclusive of miscarriage and stillbirth, but it does not include abortion, nor specifically address the impact of the law on trans men or non-binary people. Its chosen mechanism for offering benefits for pregnancy loss creates a hierarchy of losses, and pulls questions about the relationship between women’s bodies, choice and law into the mix.
As well, bereavement leave in New Zealand is brief (three days). This raises the issue of the different mechanisms available to address pregnancy loss. If we see miscarriage, stillbirth and abortion as matters of health or mental health, we might legislate differently than if we view pregnancy loss as an issue of grief.
Finally, the pandemic has shone a light on structural health inequities; in particular the burdens that have fallen onto racialized, Indigenous and people living with poverty in disproportionate ways.[7] A law that recognizes pregnancy loss as worthy of bereavement looks—on the surface—like the kind of law that would apply to all equally. But what we know is that the benefit flows only to people with certain forms of employment, and that pregnancy loss has been exacerbated by a health system in crisis.
Carol Sanger, a noted American legal scholar, has written extensively about the intentional use of reproductive health law initiatives, like New Zealand’s, that aim to “produce or satisfy a specific emotional state in those subject to the law.”[8] For those of us who research the ways that governments provide familial benefits through law, Sanger’s method of enquiry offers emotion as a distinctive means through which to navigate what is a profoundly altered world; the interaction of law and emotion is a prescient lens through which to appreciate those changes.
In this context—one in which law is arguably forcing a particular narrative of grief onto those to whom it applies—the absence of abortion in the New Zealand law is startling. Even more so given that the United States Supreme Court has reversed the decades-strong precedent on abortion in Roe v Wade.[9] To offer the benefit in a way that demarcates deserving and undeserving ways for a pregnancy to end calls into question the law’s value.
The first law in Canada has emerged, somewhat surprisingly, out of Alberta.[10] It is heartening, however, to read the debates in Hansard and to see the compassion, attention to gender, and the diverse approaches to health that lie behind this law. Importantly it offers the benefit to all employees (partners, and intentional parents) when a pregnancy ends without a live birth. A law that is inclusive of the complexity of reproductive health issues that impact gender-diverse communities is a good stepping stone for other forms of meaningful activism and change.
The Canadian poet, rupi kaur, has written: “what is stronger/than the human heart/which shatters over and over/and still lives.”[11] Indeed. As Canada begins to attend to grief and loss as mental health considerations, there will be more moments to pay attention to the interrelated issues of law, grief, gender, and caregiving. A careful exploration of Canada’s response to bereavement leave for pregnancy loss is hopefully a catalyst for more conversations that centre embodied, systemic and inclusive approaches to law and its power.
[1] Valérie Perrin, Fresh Water for Flowers (New York: Europa Editions, 2020) at 313.
[2] Ibid. Fresh Water for Flowers, set in a cemetery and centring a haunting story of loss, became one of Europe’s most popular “lockdown” reads at the height of the COVID-19 pandemic. See Robert Gray, “Fresh Water for Flowers in a Time of ‘Lockdown Reads’” (9 April 2021), online: Shelf Awareness <www.shelf-awareness.com/issue.html?issue=3961#m52048> [perma.cc/34Q3-GTSE].
[3] See e.g. “Miscarriage bereavement leave bill passes unanimously in Parliament,” New Zealand Herald (24 March 2021), online: <www.nzherald.co.nz/nz/miscarriage-bereavement-leave-bill-passes-unanimously-in-parliament/NUDXHJRTZBMUXQAMTTTQPFJJCU/> [perma.cc/7YJE-XBL2].
[4] See Gillian Calder, “Legislating Emotion, Reading Grief: Bereavement Leave for Miscarriage and Stillbirth in New Zealand Law” (2022) 45:2 Dal LJ [forthcoming].
[5] For a recent exploration of law and emotions scholarship, see Susan A Bandes et al, Research Handbook on Law and Emotion (London: Edward Elgar, 2021).
[6] See Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 (NZ), 2021/10, online: <www.legislation.govt.nz/act/public/2021/0010/latest/versions.aspx> [perma.cc/C7JU-G3M3].
[7] See e.g. Barbara Chmielewska et al, “Effects of the COVID-19 Pandemic on Maternal and Perinatal Outcomes: A Systematic Review and Meta-Analysis” (2021) 9:6 Lancet 759, DOI: <10.1016/S2214-109X(21)00079-6>.
[8] Carol Sanger, “Legislating with Affect: Emotion and Legislative Law Making” (2013) 53 Nomos 38 at 47, online: <www.jstor.org/stable/24220329> [perma.cc/3UEM-ERFK].
[9] See Dobbs v Jackson Women’s Health Organization, et al, 142 S Ct 2228 (2022), online: <www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf> [perma.cc/PR9V-33KJ].
[10] Bill 17, Labour Statutes Amendment Act, 2022, 3rd Sess, 30th Leg, Alberta, 2022, online (pdf): <docs.assembly.ab.ca/LADDAR_files/docs/bills/bill/legislature_30/session_3/20220222_bill-017.pdf> [perma.cc/9TPQ-NZCH].
[11] rupi kaur, the sun and her flowers (Toronto: Simon and Schuster, 2018) at 109.