Does South Carolina's six-week paid parental leave for state employees and teachers cover a stillbirth?
Plain-English summary
State Representative Neal Collins asked the South Carolina AG whether the six-week paid parental leave benefit for state employees (added in 2022) and for school district employees (added in 2023) covers parents whose child is stillborn. He had been hearing that some employees were being denied or delayed in receiving leave because their child was stillborn rather than born alive.
Solicitor General Emeritus Robert Cook concluded that a court would likely read the word "birth" in §§ 8-11-150 and 8-11-151 broadly enough to include stillbirths. The reasoning: the statute simply says "birth" without limiting it to "live birth," South Carolina law has long treated a viable fetus as a "child" or "person" for many purposes, recent state Supreme Court decisions on abortion treat the unborn as a protected interest, and the parallel federal FMLA explicitly covers stillbirths. Excluding stillbirths from leave coverage when the parent has gone through the same physical birthing process would, in the AG's view, produce an "absurd result" that the General Assembly likely did not intend.
The opinion is careful to note three limits: (1) AG opinions are advisory and do not bind state agencies; (2) the question is "a close one" because the statute does not expressly mention stillbirths; and (3) "legislative clarification is warranted" so that parents of stillborn children are mandated, not just likely, to receive paid parental leave.
What this means for you
If you are a state employee or public school employee facing a stillbirth
You have a strong argument that §§ 8-11-150 and 8-11-151 entitle you to the full six weeks of paid parental leave. The AG's analysis points the same way as federal FMLA, which the U.S. Department of Labor has confirmed covers stillbirths (Fact Sheet 28-Q). When you apply, the document trail you want is:
- A copy of this AG opinion (cite as Op. S.C. Att'y Gen., September 3, 2025).
- The federal Wage and Hour Division Fact Sheet 28-Q on FMLA leave for stillbirths.
- Medical documentation that you delivered (vaginally or by C-section) after 20 weeks of gestation, which is the CDC's clinical definition of stillbirth.
If your agency or school district HR denies the leave, the denial is reviewable, and the AG opinion is persuasive authority that a court would likely accept your position.
If you are an HR administrator or benefits coordinator
You are now on notice that denying paid parental leave for a stillbirth is a litigation risk. The AG's opinion does not bind you, but it puts the state's legal officer on record that a court would "likely" rule against a denial. Practical steps:
- Update your written policies to clarify that "birth" under §§ 8-11-150 and 8-11-151 includes stillbirths.
- Apply the same documentation standard you use for live births (employee certification plus medical documentation).
- If you have already denied claims based on a "live birth" reading, consider revisiting those denials before they ripen into grievances or lawsuits.
If you are a state legislator
The AG explicitly invited legislative clarification. Adding a one-sentence definition to §§ 8-11-150(B) and 8-11-151 stating that "birth" includes a stillbirth as defined by the CDC (loss of pregnancy after 20 weeks) would close the question. Without that, parents are dependent on agency interpretation and on the AG's non-binding view.
If you represent a state employee in a benefits dispute
The opinion gives you four lines of argument: plain-meaning ("birth" without "live"), South Carolina precedent treating a viable fetus as a person (McKnight, Whitner, Hall v. Murphy), parallel federal FMLA coverage, and the canon against absurd results. Cite Robert Cook by name as Solicitor General Emeritus rather than as Attorney General Wilson, since the opinion was authored by Cook and reviewed only at the section level.
Common questions
Q: Is my agency required to give me leave for a stillbirth?
A: An AG opinion is advisory, not mandatory. But this opinion concludes a court would "likely" find that §§ 8-11-150 and 8-11-151 cover stillbirths. If your agency denies coverage, you have a meaningful legal claim, and the AG has already publicly said the agency is probably wrong.
Q: How does South Carolina define "stillbirth"?
A: The statutes do not define it. The AG opinion uses the CDC's clinical definition: loss of pregnancy after 20 weeks of gestation. A loss before 20 weeks is generally classified as a miscarriage and would be analyzed differently.
Q: Does this apply to private employers or only state employees?
A: Only state and school district employees, because §§ 8-11-150 and 8-11-151 are public employee statutes. Private-sector workers may have rights under federal FMLA (which the U.S. Department of Labor says covers stillbirths) but are not covered by these state provisions.
Q: Does it cover both parents or only the birth parent?
A: The statutes provide leave to both qualifying parents, with one parent receiving up to six weeks and a "co-parent" up to two weeks at full base pay. The AG opinion treats stillbirth the same as a live birth for these purposes.
Q: What if I had a stillbirth and was denied leave before this opinion came out?
A: The opinion is dated September 3, 2025. If your agency denied leave before that and the denial is still grievable under your agency's procedures, you may want to ask for reconsideration with the AG opinion attached. Talk to an employment lawyer about the timing limits.
Q: Could the legislature change this?
A: Yes, in either direction. The AG explicitly asked for legislative clarification. A clarifying amendment could either confirm coverage (the AG's preference) or expressly exclude stillbirths (which the AG considered unlikely given recent legislative direction on protecting unborn life).
Background and statutory framework
The South Carolina General Assembly enacted Section 8-11-150 in May 2022 (S. 11), giving state employees six weeks of paid leave at 100% of base pay following the birth, adoption, or foster care placement of a child, plus two weeks for the co-parent. In 2023, the legislature extended the same benefit to teachers and other school district employees through § 8-11-151. Both statutes use the term "birth" without defining it.
The AG opinion grounds the analysis in two layers. First, ordinary statutory interpretation: words get their plain meaning, and Merriam-Webster defines "birth" as "the emergence of a new individual from the body of its parent" without limiting that to a live emergence. Common usage refers to "giving birth to a stillborn child" (the opinion cites Batts v. Capp, 191 S.E.2d 227 (Va. 1972)).
Second, broader South Carolina law treats a viable fetus as a "child" or "person" in numerous contexts: criminal homicide and child endangerment (McKnight, Whitner, State v. Horne, State v. Ard), the death penalty (State v. Ard), and abortion (the 2025 and 2023 Planned Parenthood decisions). The lone outlier the AG had to distinguish is Crosby v. Glasscock Trucking Co., 340 S.C. 626 (2000), where the Supreme Court declined to recognize a wrongful death cause of action for a nonviable stillborn fetus. Even Glasscock, the AG notes, used "born" to describe both live and stillborn births.
Federal law reinforces the conclusion. The U.S. Department of Labor's Wage and Hour Division Fact Sheet 28-Q expressly states that FMLA leave is available "to recover from childbirth, including to recover from a stillbirth." Where state and federal parental-leave statutes are read in parallel, treating "birth" the same way avoids creating a gap.
The AG's bottom-line caution is real: this is statutory interpretation by the executive branch, not a binding court decision. The opinion describes the question as "a close one" and explicitly asks the legislature to clarify. Until clarification or a court ruling, agencies retain practical discretion in how they apply the statute.
Citations and references
Statutes:
- S.C. Code § 8-11-150 (paid parental leave for state employees)
- S.C. Code § 8-11-151 (paid parental leave for school district employees)
- Family and Medical Leave Act (29 U.S.C. § 2601 et seq.)
- DOL Fact Sheet 28-Q (FMLA leave for birth and placement)
Cases:
- State v. McKnight, 352 S.C. 635, 576 S.E.2d 168 (2003) (viable fetus is a "person")
- Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 42 (1964) (viable fetus protected under wrongful-death statute)
- Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997) (viable fetus is a "child" under child-abuse statute)
- Crosby v. Glasscock Trucking Co., 340 S.C. 626, 532 S.E.2d 856 (2000) (no wrongful-death action for nonviable stillborn fetus)
- Planned Parenthood S. Atl. v. State, 445 S.C. 600, 916 S.E.2d 299 (2025)
- Dobbs v. Jackson Women's Health, 597 U.S. 215 (2022)
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-stillbirths-are-covered-by-paid-family-leave-benefits/
- Original PDF: https://www.scag.gov/media/05qmrupv/collinsn-os-11056-final-opinion-9-3-2025.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
ALAN WILSON
ATTORNEY GENERAL
September 3, 2025
The Honorable Neal A. Collins, Member
South Carolina House of Representatives
418-C Blatt Building, P.O. Box 11867
Columbia. SC 29211
Dear Representative Collins:
You seek our opinion regarding whether stillbirths are covered by paid family leave
benefits. In your letter, you state the following:
[t]he South Carolina General Assembly passed six-week paid family leave for state
employees in 2022. The General Assembly expanded this benefit for teachers and
school district employees in 2023. Denying paid parental leave benefits from parents
suffering from stillbirth goes against the plain meaning of the statutes. While I
understand that South Carolina is not a legislative intent state, as the primary sponsor
to the 2023 legislation, I can attest that any interpretation that a stillbirth is not a
"birth" under the statute is incorrect.
Your letter references §§ 8-11-150 and 8-11-151 which authorizes paid family leave for state
employees and school district employees. In addition, you state:
. .. my understanding is that teachers, eligible school district employees, or qualified
coparents experiencing a stillbirth are being delayed, or denied, from receiving their
paid parental leave benefits when their child is stillborn. These heart-wrenching
denials and delays are ongoing even when teachers and eligible employees
experience complications. ... Even though their child was stillborn, these parents
went through the birthing process, a major medical event. They need their promised
paid parental leave benefits to best recover from their tragic losses and suffering.
While you pose a number of interrelated questions, the essence of your inquiry is whether
parents of a stillborn child may receive paid family leave. In our view, the General Assembly
likely so intended. However, legislative clarification is warranted to make such legislative intent
enforceable.
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The Honorable Neal A. Collins
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September 3, 2025
Law/Analysis
A good summary of the paid parental leave program is provided by South Carolina’s
Department of Administration. This summary reads in pertinent part as follows:
[o]n May 13, 2022, Governor Henry McMaster signed into law S. 11 which added
Section 8-11-150(A) and amends Section 8-11-155 of the South Carolina Code of
Laws, to provide six weeks of paid leave at one hundred percent of the eligible state
employee’s base pay or two weeks of paid leave at one hundred percent of the state
employee’s base pay depending on the qualifying event... .
Qualifying events include the birth of a newborn biological child to an eligible state
employee. ... To qualify for Paid Parental Leave (PPL), the adoption, birth or foster
care placement must occur on or after Oct. 1, 2022.
Adm.sc.gov/services/state-human-resoures/benefits-leave/parental-leave. As your letter
indicates, a similar law was enacted for school district employees in 2023.
Section 8-11-150(B) simply states that eligible state employees who “give birth” are
entitled to receive six weeks of paid parental leave. Neither §§ 8-11-150 nor 8-11-151 defines
the word “birth.” Both statutes define a “child” as “a newborn biological child or foster of a
child in state custody and under the age of eighteen. No child can have more than two parents
for paid parental leave.” A “qualifying event” is defined as “. . . the birth of a newborn
biological child to an eligible state employee... .”
However, even though “birth” is not defined in the statutes, in its ordinary sense, the
word “birth” simply means “the emergence of a new individual from the body of its parent.”
Merriam Webster Dictionary. While one might assume a “newborn” relates only to a child born
alive, it is not necessarily so. Even under the ancient common law, a child was spoken of as
either “born living” or “born dead.” See Sims Case, 75 Eng. Rep. 1075 (1601); see also Ex Parte
Atkinson, 238 S.C. 521, 524, 121 S.E.2d 4, 5 (1961) [“. . . on January 17, 1959, her child was
born dead.”]. It is common phraseology to say a woman “gave birth to a stillborn child.” See
e.g. Batts v. Capp, 191 S.E.2d 227, 228 (Va, 1972). Thus, under the Paid Parental Leave
statutes, leave is granted for a “birth,” without further explanation. The Legislature did not
specify that the requirement for leave must be a “live birth.” Nor did the Legislature indicate
that a “newborn child” must be born alive.
A stillbirth is defined by the CDC as the loss of a pregnancy after 20 weeks and before
birth. A miscarriage is usually defined as the loss of a fetus before the 20th week of pregnancy.
www.cde.gov/stillbirth/about/index.html#: ~ : text = CDC% 20 works % 20 to % 20 learn % 20
more services % 20 to % 20 help % 20 prevent % stillbirth. It has been reported that most states
do not cover stillborn births as part of their paid family leave legislation, even though, according
to the CDC, more than 20,000 babies are born still each year. Liacko, “Maternity Leave Benefits
Unavailable to Moms Who Deliver Stillbirths,” scrippsnews.com/science-and-tech/maternity-
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leave-benefits-unavailable-to-moms-who-deliver-stillbirths. Typically, legislation has been
deemed necessary in other states to make this clear. Thus, we must examine how our courts
would likely approach the issue. We turn now to an interpretation of South Carolina’s paid
family leave legislation.
In reviewing your questions, several basic rules of statutory interpretation are pertinent.
As we stated in Op. S.C. Att’y Gen., 2004 WL 2745669 (November, 22, 2004),
[f]irst and foremost, is the cardinal rule of construction that the primary purpose in
interpreting statutes is to ascertain the intent of the General Assembly. State v.
Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). A statute must receive a practical,
reasonable and fair interpretation consonant with the purpose, design and policy of
the lawmakers. Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788
(1948).
Words must be given their plain and ordinary meaning without resort to subtle or
forced construction to limit or expand the statute’s operation. State v. Blackmon, 304
S.C. 270, 403 S.E.2d 660 (1990). However, the Court has cautioned against an
overly literal interpretation of a statute which may not be consistent with legislative
intent. Greenville Baseball, Inc. v. Bearden, 200 S.C. 363, 20 S.E.2d 813 (1942). As
stated by our Supreme Court in Bearden,
[i]t is a familiar canon of construction that a thing that is within the intention
of the makers of the statute is as much within the intention of the makers of
the statute is as much within the statute as if it were within the letter. It is an
old and well established rule that the words ought to be subservient to the
intent and not the intent to the words.
Id. at 368-369. A sensible construction, rather than one which leads to irrational
results, is always warranted. McLeod v. Montgomery, 244 S.C. 308, 106 S.E.2d 778
(1964),
In addition, remedial statutes, such as §§ 8-11-150 and 8-11-151, should be broadly construed in
order to effectuate their purpose. S.C. Dept. of Mental Health v. Hanna, 270 S.C. 210, 241
S.E.2d 563 (1978). Moreover, the “‘court will reject the ordinary meaning of words used in a
statute’ and apply the rule of construction according to the spirit of the law when to accept the
ordinary meaning of such words ‘would lead to a result so plainly absurd that it could not
possibly have been intended by the Legislature.’” Soil Remediation Co. v. Nu-Way
Environmental. Inc., 317 S.C, 274, 276, 453 S.E.2d 253, 254-55 (Ct. App. 1994) (quoting S.C.
Bd. of Dental Examiners v, Breeland, 208 S.C. 469, 480, 38 S.E.2d 644, 650 (1946)).
Against this backdrop, we first note that the South Carolina Supreme Court has
repeatedly held that a viable fetus is a “child” or a “person” for various purposes. In State v.
McKnight, 352 S.C. 635, 650, 576 S.E.2d 168, 175-76 (2003), for example, the Court reviewed
The Honorable Neal A. Collins
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these decisions in the context of a mother ingesting crack cocaine which caused her child to be
born stillborn:
[i]a numerous cases dating since 1960, we have held that a viable fetus is a person.
Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 42 (1964); State v. Horne, 282 S.C. 444,
319 S.E.2d 703 (1984); In [Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997)]...
we reiterated the fact that a viable fetus is a child within the meaning of the child
abuse and endangerment statute. Most recently, we held that a viable fetus is both
“person” and “child” as used in statutory aggravating circumstances which provide
for death penalty eligibility. State v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998).
On the other hand, in Crosby v. Glasscock Trucking Co., 340 S.C. 626, 532 S.E.2d 856
(2000), our Supreme Court held that a nonviable, stillborn fetus may not maintain a wrongful
death action. The majority distinguished the situation of “a nonviable but born-alive fetus” as
“fundamentally different from a case such as this where the fetus is not born alive.” 340 S.C. at
628, 532 S.E.2d at 857. Thus, the Supreme Court in Glasscock concluded:
[cjonsistent with our decision in [West _v. McCoy, 233 S.C. 369, 105 S.E.2d 88
(1958)], the majority of courts have held a nonviable stillborn fetus cannot maintain
an independent wrongful death action [cases cited]. ... Courts addressing this issue
have invariably deferred to the legislature in rejecting a wrongful death action by a
nonviable stillborn fetus... .
Justices Toal and Burnett strongly dissented, however. Justice Toal cited Fowler v. Woodward
as being entirely consistent with the dissent’s position:
... When Fowler was decided in 1964 we departed from the majority view which
held that the stillbirth of a viable fetus did not give rise to a wrongful death action.
The fact that we were in the minority did not prevent the Court from refusing to
follow the illogic of requiring that a fetus be born alive before a cause of action could
be brought for prenatal injuries. And, in fact, this view has now become one shared
by the majority of jurisdictions. Thus, it is in keeping with this reasoning that I
would decline to allow a defendant to escape liability when a nonviable fetus dies in
the womb, but not when the fetus is injured and later born alive.
340 S.C. at 639, 532 S.E.2d at 863 (Toal and Burnett, JJ., dissenting). In short, the Glasscock
dissent refused to draw an artificial line between a fetus which “dies in the womb” and a fetus
which “is injured and later born alive.” In the dissent’s view, a nonviable, stillborn fetus is a
“person” for purposes of the wrongful death statute, notwithstanding that the fetus was not born
alive. It is important to note that, even in this case, the Court referred to a child being “born”
alive and one being “born” not alive.
Since Glasscock, much has changed in South Carolina law regarding protection of the
unborn. More recently, pertinent to our analysis are our Supreme Court’s decisions in the
Planned Parenthood abortion cases. In Planned Parenthood S. Atl. v. State, 445 S.C. 600, 614-
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15, 916 S.E.2d 299, 306-07 (2025), the State Supreme Court held that the General Assembly’s
abortion ban is one of six weeks, not one prohibited after nine weeks. According to the Court,
[e]veryone ~ particularly the members of this Court — consistently and’ exclusively
discussed the 2021 Act in terms of being a six-week abortion ban. If the General
Assembly intended, in defining “fetal heartbeat” in the 2023 Act exactly as it defined
it in the 2021 Act, that the 2023 Act would ban most abortions at a “biologically
identifiable moment in time” other than when electrical impulses are detectable on an
ultrasound — which even Planned Parenthood acknowledges occurs at approximately
six weeks of pregnancy. . . — it is inconceivable that no member of the House or
Senate made any effort to point out that the members of this Court misunderstood the
General Assembly’s intent.
And, in Planned Parenthood South Atlantic v. State, 440 S.C. 465, 474, 892 S.E.2d 121, 126-27
(2023), Chief Justice Kittredge noted that “[i]t is apparent the South Carolina General Assembly
carefully crafted the 2023 Act in an effort to demonstrate that its policy decision . . . ‘took into
consideration the interests of the pregnant woman and balanced them against the legitimate
interest of the state to protect the life of the unborn,’ the latter interest of which the Legislature
characterized as ‘compelling.’” Thus, a far more recent indicator of the intent of the General
Assembly — that abortions are prohibited after the detection of a fetal heartbeat or at
approximately six weeks — is consistent with the question raised here — that a stillborn fetus
represents a “person” or a “child.” Viability is no longer the principal consideration for there to
be a “child” or “person,” in the view of the South Carolina General Assembly.
In addition, legislation is currently pending in the Legislature (H. 3457) entitled “The
Human Life Protection Act” which bans all abortions, with exceptions for medical emergencies.
The premise of the Bill is that human life begins at conception. Even before the Supreme Court
overruled Roe v. Wade, 410 U.S. 113 (1973) in Dobbs v. Jackson Women’s Health, 597 U.S.
215 (2022), the United States Supreme Court had noted that Roe implied “no limitation on the
authority of a state to make a value judgment favoring childbirth over abortion, and to implement
that judgment by the allocation of public funds.” Maher v. Roe, 432 U.S. 464, 474 (1977). See
also, Op. S.C. Att’y Gen., 2005 WL 774133 (March 30, 2005) (“personhood” bill is facially
constitutional). Then, as the Court held more recently in Dobbs, “i]t is time to heed the
Constitution and return the issue of abortion to the people’s elected representatives.” 597 U.S. at
232. Thus, each state may determine for itself when life begins. Accordingly, H. 3457 is further
indication that the intent of the South Carolina General Assembly tilts strongly in favor of
protection of the unborn, including the stillborn.
A recent Fact Sheet issued by the Wage and Hour Division of the United States
Department of Labor regarding the parallel Family and Medical Leave Act (FMLA) confirms
that FMLA allow Family Leave for stillbirths. Fact Sheet # 28 Q states that “[a]n employee may
take leave to recover from childbirth, including to recover from a stillbirth, or may take leave to
care for a spouse recovering from childbirth.” See dol.gov/agencies/whd/fact-sheets/28 q-
taking-leave-for-birth-placement-child.
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It is important to emphasize also that the trauma suffered by parents of a stillborn child is
vastly underappreciated and understated. As one authority has explained:
“[bJut to parents, still birth is no different than infant death.” [PJarents describe the
grief of stillbirth as being just as deep, painful, and significant as it would be to lose
an infant who is born and survives a few weeks in intensive care. When asked what
“they most wanted the general public to know about stillbirth and how it affects
families,” parents overwhelmingly answered that “a stillbirth is a death in the
family.” Plainly stillbirth is the death of your child. Whether the child — who has a
name, who “is real and will always be remembered as a part of the [ ] family” took a
breath outside of womb is irrelevant to the extent of the parents’ loss.
Lens, “Tort Law’s Devaluation of Stillbirth,” 19 Nev. L.J. 955, 979 (2019). Thus, parents of a
stillborn child strongly feel the grief of their child’s death. And, it is recognized that a stillborn
child leaves the parent in a severe state of confusion:
“[t]he death of a child by itself is transformative because it obliterates the parental
role in regard to that child.” . . . This transformation is especially drastic after
stillbirth — “[t]he parents of a still born child probably have one of the hardest times
of any bereaved adult dealing with the reality of death and the permanence of
changed expectations that it entails.”... Research shows that the parents, especially
mothers, question their parenthood after stillbirth . . . “even if they have older living
children, the full scope of their parenthood is ambiguous because most people will
not acknowledge the child who died at birth as a member of the family.” ... After
the baby’s death, “there are no tangible signs of parenthood... .” Unlike a growing
child or an adult, who leave behind a trail of existence, an unborn child lacks the
material traces of social life. . . If a stillborn baby is not a member of the family, then
the parent is not really a parent. “Researchers have been keen to point out that
parents will question how many children they have and, for the first-time parent,
there is also the doubt about whether they are a mother or father at all.” Parents are
“rob[bed] of their identity as parents, based on the fact that their baby did not
survive.”
Lens, Id. at 985,
In short, in enacting the Paid Parental Leave statutes, the Legislature did not limit the
“birth” of a child to one “born alive,” but instead referenced a “birth.” Such a broad word choice
is consistent with South Carolina’s recognition that even an unborn is a “person” or a “child.”
This being the case, we conclude that the General Assembly intended in the Paid Parental Leave
statutes to include a stillborn child within the word “birth,” even though not born alive.
The Honorable Neal A. Collins
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Conclusion
While the question is a close one, based upon the foregoing authorities, it is our opinion
that a court would likely conclude that South Carolina’s Paid Parental Leave statutes encompass
stillbirths. In our view, the fact that the Legislature did not define the word “birth” as limited to
being born alive is telling. Instead, the General Assembly simply used the word “birth,” without
further explanation. In addition, the statutes do not exclude stillbirths from coverage. Moreover,
while these statutes authorizing Paid Parental Leave literally do not mention stillbirths, we are of
the view that, based upon the body of South Carolina case law concluding that an unborn fetus is
a “person” or “child,” as well as the recently enacted statutes banning abortions after
approximately six weeks, it was the General Assembly’s intent to include any “birth” — whether
born alive or not. This would mean that stillbirths were intended to be included within the Paid
Parental Leave statutes, consistent with the fact that South Carolina has long recognized that an
unborn is a “person” or “child.” Otherwise, the General Assembly would have made a specific
exception to exclude stillbirths. It did not.
Our Supreme Court has consistently recognized that legislative intent is controlling over
the words used, and that “a sensible construction, rather than one which leads to irrational
results, is always warranted.” The spirit of a law must be given effect when to do otherwise
would produce an absurd result. We believe it would produce an absurd result if stillbirths are
not included in the Paid Parental Leave statutes.
Stillbirth has been described by parents whose child was stillborn as “a death in the
family.” Lens, “Tort Law’s Devaluation of Stillbirth,” supra. One authority has noted that
“*[gliving birth to a stillborn child is physiologically identical to giving birth to a living child,
although more traumatic.’” Lens, “The WNBA’s Collective Bargaining Agreement: A Slam
Dunk for Working Women and Mothers,” 110 Ky. L.J. 333, 376-78 (2022). And, as was stated
in dissent in Coleman v. Ct. Appeals of Md., 566 U.S. 30, 57 (2012), “[i]t would make scant
sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery
from delivery, a miscarriage, or the birth of a stillborn baby.” Further, as one court has found,
“Tw]e determine that the legislature knew that a birth could be live or not live and it would have
used the term “live birth” if that is what the legislature meant.” Accordingly, in our view, the
General Assembly’s use of the broad term “birth,” without definition, or further elaboration, was
intentional and meant not to be limited to those born alive.
Therefore, we conclude the word ‘birth’ [in the Paid Parental Leave statutes] includes a
‘still’ birth. Strzelczyk v. Jett, 870 P.2d 730, 733 (1994). In short, it would defy logic for the
Legislature to have included within paid parental leave live births — even if living for a short
period of time — yet have excluded stillborn births. It is well recognized that a statute must be
interpreted in a common sense, logical manner. Hay v. S.C. Tax Comm., 273 S.C. 269, 255
S.E.2d 837 (1979). And, a court will construe a word used in a statute in a broad sense, with all
the variations thereof, where such is consistent with legislative intent. Gaud v. Walker, 214 S.C.
The Honorable Neal A. Collins
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451, 471, 53 S.E.2d 316, 325 (1949). Here, the Paid Family Leave statutes must be read with
common sense, and not in an arbitrary manner.
Of course, our opinion is advisory only. It does not bind those who are required to apply
or enforce the Paid Parental Leave statutes. Our opinions do not mandate. However, the
General Assembly’s intent, set forth in the Planned Parenthood cases, and in H. 3457, points to
the recognition that human life must be protected. This intent; coupled with the General
Assembly’s use of the broad term “birth,” indicates to us that stillbirths were intended to be
included within Paid Parental Leave. A stillborn child is as much a “birth” as a child born alive,
who then quickly dies. Nevertheless, while we may provide you with our legal analysis — which
is based upon the General Assembly’s intent to protect the unborn or those born “still” —
clarification by the Legislature is warranted. Such clarification would be especially desirable, in
our view, so that parents of a stillborn child are mandated to receive Paid Parental Leave.
Sincerely,
LD. COR.
Robert D. Cook
Solicitor General Emeritus