South Carolina's top lawyers say paid family leave should include stillbirths too

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COLUMBIA, S.C. (AP) — South Carolina's law allowing for family leave after the birth of a child should also provide at least six weeks of paid time off when a baby is stillborn, according to an opinion from the state's top lawyers.

After lawmakers approved the paid leave for teachers and other school district workers as well as other state employees in 2023, lead sponsor Republican Rep. Neal Collins said he heard of at least three school districts that refused to let teachers have paid time off after their baby died during childbirth.

“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 loss and suffering,” Collins wrote in a letter requesting the opinion of the South Carolina Attorney General's Office.

The office agreed, noting that the law only references a “birth” and not a “live birth,” and that in other places in state law, such as abortion and wrongful death, a fetus that would be viable outside of the womb is considered a person.

“Giving birth to a stillborn child is physiologically identical to giving birth to a living child, although far more traumatic. Parents in this circumstance deserve the time, support, and benefits guaranteed under law to recover from their tragic loss," Solicitor General Emeritus Bob Cook wrote in the opinion.

But the opinion is not legally binding. Instead, it is the Attorney General Office's best guess, based on the law, about how a judge might rule.

So Cook suggested that Collins and other lawmakers pass a bill in 2026 specifying that stillbirth is included in family leave.

Collins said he plans to do just that, and has plenty of support in the general assembly. Collins did not identify the districts that did not offer leave, saying he did not want to risk identifying the parents suffering from the loss of their child.