The nation’s largest medical examiner’s organization has issued a warning about a controversial centuries-old forensic test that contributed to a pregnant woman being charged with murder.
The premise behind the lung flotation test is simple. If a baby is born alive and then dies, the air from the first breath will cause the lungs to float in a jar of water. If a baby is stillborn, there is a lack of air in the lungs and the baby sinks. But many critics of the test have long branded it junk science, drawing parallels between it and witch trials in which women were classified as witches depending on whether they floated or sank.
The American Association of Medical Examiners included the lung float test as part of a larger opinion paper released in October on the investigation of perinatal deaths, including stillbirths. The panel of 11 experts said the test had “known pitfalls”, “questionable value” and “no clearly defined error rate”.
“Those using lung floats should be careful to accept the results if they match the sum of the findings and reject the results if they are inconsistent. A ‘test’ used in such a manner will inevitably be more dangerous than useful,” the authors write.
The paper follows a 2023 investigation by ProPublica into the use of lung flotation tests in cases where a woman was charged with murder despite claiming she had given birth to a stillborn baby. ProPublica found that the test was deeply flawed, lacked basic standardization in the field of reliable forensic science, and did not have the full support of any of the nation’s 12 largest medical examiner’s offices.
This test is usually used when giving birth outside of a hospital or without medical supervision. However, the newspaper warned that it can be very difficult to distinguish between live and stillborn infants. The authors write that there are no diagnostic tools or findings other than the food in the stomach that are “the sole determinant of whether the infant survived or was stillborn.”
The authors write that a high degree of certainty is needed to determine whether a baby is alive, dead or stillborn, as this can lead to criminal charges. They concluded that if the autopsy and findings “do not provide clear and convincing evidence of a live birth, a default designation of fetal death (stillbirth) is recommended.”
Dr. Reed Quinton, president of the American College of Medical Examiners and associate professor of pathology at the Mayo Clinic, said he believes this is the first time in the association’s nearly 60-year history that the association has issued a position statement that includes a statement on lung floatation testing. The paper will be published next year in the American Journal of Forensic Medicine and Pathology.
“We hope this document provides guidance on how to deal with these complex cases,” he said.
In a separate response to ProPublica’s investigation, a group of medical and legal experts convened a study group to examine the lung floatation test and determine whether it should be used in court. That effort continues today.
At the time of ProPublica’s investigation, Dr. Oday Ukpo, Los Angeles County’s chief medical examiner, said the department does not use the county’s lung floatation test because it is “unreliable and inaccurate.” He said this month that his office remains committed to “evidence-based medicine” and the opinion “exemplifies how forensic medicine is consistent with this practice.”
Some medical examiners who use the test said they fear they will be criticized for not using it because the test is often included in forensic pathology training. The paper declares that there is “no reason to mandate its implementation.” It also highlights the lack of data on testing and the wide variation in how tests are administered.
The paper’s findings are particularly relevant in the wake of growing concerns about criminalizing pregnancy loss following the U.S. Supreme Court’s decision to eliminate the constitutional right to abortion.
In September, the New York-based nonprofit organization President Justice released a report examining prosecutions in the two years following the Dobbs decision. During that time, more than 400 people were charged with pregnancy-related crimes, 31 of whom resulted in miscarriages. A release about the report said it treated miscarriages and stillbirths as “suspicious events rather than personal medical experiences.”
ProPublica’s 2023 investigation examined the case of Moira Akers, a Maryland mother charged with murder and child abuse. She was sentenced to 30 years in prison because prosecutors cited a lung floatation test as part of the evidence against her. Akers claimed her baby was stillborn.
“My lungs were floating,” the prosecutor said during closing arguments. “After giving birth at home that day, this baby was breathing and alive and floating.”
The Maryland Supreme Court granted Akers a new trial in February, but did not rule on the use of lung floatation tests, instead focusing on Akers’ history of seeking abortions and lack of prenatal care. A spokesperson for the Howard County State’s Attorney’s Office did not respond to questions about the opinion or whether prosecutors plan to use the results of the lung floatation test in Akers’ new trial, scheduled for June.
ProPublica also wrote about Latisse Fisher. She gave birth to the baby in the bathroom and told her husband, who called 911. The coroner in Fisher’s case performed a lung floatation test. Part of the lung was floating, and part was not. The medical examiner ruled that the baby was born alive and died of suffocation. A grand jury indicted Fisher on charges of second-degree murder.
Fisher’s attorneys wrote a letter to Mississippi 16th Circuit District Attorney Scott Colom about the test’s shortcomings, urging Colom to investigate further. He dismissed charges against Fisher in 2019, but later submitted details about the incident and lung floatation tests to another grand jury, which did not indict her.
Colom said the opinion provides much-needed guidance on testing, especially in fields like his where people are wrongly prosecuted and coroners are not necessarily forensic experts.
“It’s important to make that clear,” he said. “Once you get momentum towards a prosecution, it takes a little courage to stop that train and go back in a different direction.”
