by David M. Reutter

When a woman has a child while alone that does not survive, authorities may wonder if the child was stillborn or murdered by the mother. Many medical examiners attempt to answer that question by conducting a 17th Century procedure that medical experts say is “highly inaccurate and should not be used.”

The procedure, known as the “lung float test” or “the hydrostatic test,” involves a pathologist removing a baby’s lungs from the chest cavity, clamping them together and placing them in a container of water. The pathologist then watches.

The theory behind the method holds that if a lung does float, it means the baby drew at least one breath of air before expiring, and that if it sinks, the fetus was already dead by the time it left the womb. “A very simple premise,” the assistant medical examiner testified at the trial of Moira Akers, a 37-year-old Maryland woman who was charged with killing her infant at birth. Akers said the child was stillborn. Police were suspicious after finding the baby hidden in a closet in a plastic bag. They also learned that Akers had hidden her pregnancy after telling her husband it was terminated. It was not until she came into a hospital bleeding that she told a nurse about the stillborn child.

In 2006, Budget Lee hid her pregnancy after an affair. She went into labor at home, said the child was stillborn, and placed the child in a plastic bag in her SUV, where it remained for days. Lee was charged by an Alabama prosecutor with murder and faced the death penalty. Authorities alleged she suffocated the baby.

“Purvi Patel, a 33-year-old woman from Indiana, was convicted on February 3, 2015, on charges stemming from a pregnancy that ended in tragedy,” Slate reported. “Patel was accused by prosecutors of illegally inducing an abortion by taking pills ordered online from Hong Kong, thus committing what’s referred to in Indiana state law as ‘feticide,’ then failing to properly care for her baby during the first moments of its life, essentially allowing it to die.” The baby was found in a plastic bag in a garbage dumpster.

Despite the three cases occurring in different states, they shared one investigative quirk. The lung float or hypostatic test was conducted to determine if the child ever took a breath. Experts say this test is “highly unreliable.”

According to a report by Physicians for Human Rights (“PHR”), the “inaccuracy of the test means that it is unethical to rely on its findings as the sole determinant of suspected neonatal death. Reliance on this inaccurate and outdated test would be particularly concerning given its potential use in litigation involving accusations of people having performed, or undergone, an abortion.”

“Pathologists and other medical experts have argued for decades that this test is an invalid way of determining live as opposed to stillbirth and that there is no way to state, to a reasonable degree of medical probability, much less medical certainty, that an infant was born alive. It is just as likely the infant was born dead (due to a miscarriage or stillbirth),” states PHR.

“One of the main reasons to avoid using the test is its inaccuracy. For example, in some studies, the lungs of infants who were known to be stillborn still floated, causing a ‘false positive.’ This can occur for several reasons:

Because of ‘putrefaction’ or decomposition of the body;

Through the provision of resuscitation (cardiopulmonary resuscitation, or CPR, mouth-to-mouth or via ventilation); or

Through the handling of a deceased neonate’s body by law enforcement, clinical staff, or during transport or the postmortem examination.”

“Likewise,” the PHR report continued, “other studies have shown that the lungs of infants known to be born alive (to have breathed before dying), ended up sinking (‘false negative’) due to, for instance, the presence of fluid in the fetal lung (for example, after a waterbirth). Such results limit the conclusions that can be reached based on this test.”

“According to one of the leading forensic pathology textbooks, ‘There are too many recorded instances when control tests have shown that stillborn lungs may float and the lungs from undoubtedly live-born infants have sunk, to allow it to be used in testimony in a criminal trial,’” the PHR report stated.

The test can have huge ramifications on a trial, producing testimony and inferences that lead to a conclusion that medical experts agree is unreliable. As the noted pathologist Dr. Lester Adelson wrote: “Unless the pathologist has incontrovertible criteria of post-natal survival, e.g., well expanded lungs, food in the stomach, or vital reaction in the stump of the umbilical cord, she is legally bound not to diagnose live birth.”

“Despite the clear rejection by renowned forensic experts of the test to determine whether a neonate has taken a breath, courts have played a deleterious role in promoting its continued use,” the PHR said. “U.S.-based prosecutors in several states have relied on the test to seek convictions of feticide, murder, or manslaughter against women who have undergone self-managed abortions or experienced a stillbirth.”

The charges against Lee were dropped after she spent nine months in jail. After investigating the reliability of the lung float test, the prosecutor elected to drop the charges against Lee. Both Akers and Patel were convicted by a jury. A major difference in their cases was the evidence that accompanied the lung float evidence.

Both cases focused on the circumstantial evidence and the lung float test results. Prosecutors in Akers’ case said it hinged on whether the baby was born alive. Among the evidence they pointed to were the results of the lung float test, the pinkish appearance of the lungs, lack of decomposition, and malformation of the baby’s head or slippage of the skin.

“These lungs floated,” the prosecutor said during closing. “They floated because this child had breathed and was alive after he was delivered at home that day.” In April 2022, Akers was found guilty of second-degree murder and first-degree child abuse. She was sentenced to 30 years in prison.

Patel was also found guilty and sentenced to 30 years in prison. Prosecutors presented evidence to show the infant’s lungs were developed enough to breath, that the pathologist found the lungs to be inflated, and pointed to the lung float test results to convince the jury that the child was alive at birth.

On July 22, 2016, an Indiana Appellate Court found that the legislature had not intended for the feticide statute to be applied to illegal self-induced abortion. It vacated the feticide charge. The court also ruled that while the prosecution had proven that the child was born alive, it did not prove that the child would not have died if she had sought immediate medical attention. It therefore vacated the Class A neglect charge and remanded the case to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence her accordingly. Patel v. State, 71A04-1504-CR-166 (Ind. App. Ct. 2016).

“Reflecting the clear consensus among forensic medical experts that the [lung float or hypostatic] test is highly inaccurate and should not be used—certainly never as the only test when performing a postmortem assessment of a deceased neonate—prosecutors and judges must refrain from relying on these tests as determinative in prosecuting crimes related to conduct in pregnancy,” the PHR report concluded.

Nevertheless, it does not appear that the lung float test will be completely abandoned by the nation’s prosecutors any time soon. After all, they have an ignoble history of clinging to forensic techniques that have been proven to be junk science, especially if it aids in securing convictions.   

Sources: propublica.org, phr.org, slate.com, wikipedia.org

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