Duaa Eldeib was used to reporting on heavy topics. She’d written stories for ProPublica about the 20,000 stillbirths occurring every year in the U.S., the delayed cancer diagnoses caused by the COVID-19 pandemic, and abuse in juvenile psychiatric hospitals. But against the backdrop of these difficult stories, one piece of her reporting stood out as particularly shocking: murder trials in which prosecutors relied on a forensic procedure called the “lung float” test.
Conducted in autopsies of newborn babies, the test involves placing the baby’s lungs in a container with water and observing whether they float. If they do, examiners conclude that the baby likely took a breath before dying, meaning it wasn’t a stillbirth. The only problem, Eldeib learned, was that the lung float test has proven to be unreliable. Yet, as she wrote in an October 2023 investigation for ProPublica, prosecutors continue to use a test that experts considered to be unreliable to charge and convict mothers of stillborn babies with murder. “It was one of those things that make you take a step back and say, ‘Oh, this can’t be real,’” Eldeib says.
Together with her ProPublica colleague Mariam Elba, Eldeib looked at records and news clips from close to two dozen states and found the test had been used in at least 11 criminal cases in the U.S. since 2013; the mother went to jail in 9 of those. In her story, Eldeib focused on one of those cases: that of a Maryland mother named Moira Akers who in 2022 was found guilty of second-degree murder of her newborn baby boy. According to Akers’s account, the baby died before birth. But when the medical examiners performed the lung float test, the baby’s lungs floated and examiners concluded that the baby was born alive and that the cause of death was asphyxiation. She maintained her innocence, but the test, along with other evidence, led to Akers’s conviction; she was sentenced to 30 years in prison.
According to Eldeib, it’s part of a trend that increasingly puts mothers on the defensive. “If you don’t deliver a living, breathing baby, there’s automatically suspicion cast on you and, in cases where there’s an unattended birth or stillbirth, that suspicion becomes much greater,” says Eldeib. “I felt that this was a really important story to tell now in this moment.”
A little more than a month after Eldeib’s investigation was published, a team of lawyers and medical experts announced the formation of a group sponsored by the Boston University Program on Reproductive Justice and the Northeastern University School of Law’s Center for Public Interest Advocacy and Collaboration. The group, called the Floating Lung Test Research Study Group, will examine the scientific validity of the lung float test.
Eldeib spoke with Claudia Lopez Lloreda about how she used her previous reporting expertise to approach this sensitive topic, her strategies for finding important legal and medical documents, her role as a journalist, and how she does all this while taking care of her own mental health. (This interview has been edited for length and clarity.)
How did this story idea come about?
I had been writing about stillbirths for about a year. When [the Supreme Court overturned Roe v. Wade, striking down the constitutional right to abortion in the U.S.], there was this interest at ProPublica in looking at stillbirths from a different angle. I started really wide, looking at possible stillbirth criminalization stories and, in that reporting, I heard about the lung float test. The more I dug, the more shocked I became that it is still a test that medical examiners are relying on. And it was something that was not as well-known generally. Then the story became focused on this specific test and its role in criminalization of women who had had stillbirths.
What obstacles did you encounter when trying to interview these mothers, and how did you try to overcome them?
I had the benefit of having reported on stillbirths for so long. I learned a lot in that process about how to talk to women about the most traumatic thing that ever happened to them, and how to pace the interview to ask them, “Is it okay if we talk a little bit more about this?” So, really trying to take cues from the mothers to make sure that they were comfortable.
There are stories that are really rooted in a time in our history and this story felt like that. — Duaa Eldeib
This story added another layer of difficulty, in that not only did these women experience stillbirths, but then they were charged criminally. A lot of the women I reached out to said they were not in a place to talk about it again. These mothers didn’t want to revisit such an agonizing time in their lives. In one of the cases, I had to go through her lawyer, who didn’t want her talking to the press because this case was still pending. It’s a delicate balance. The criminalization aspect of this story added a layer of distress to the devastation of the stillbirth. With one of the mothers [who had been exonerated], we had a text exchange back and forth where I was trying to explain why it was important to the story to speak to her. But she really didn’t feel comfortable, and I didn’t want to push. I always try to keep the door open in case they want to come back, but at the end of the day it’s their decision, and I respect that.
You end up using Moira Akers, the woman who claimed she delivered a stillborn child but was charged with murder, as the main character in your story, even though you couldn’t talk to her directly. What went into that decision?
She was the only person who had an appeal pending, so it was a very recent case. It drove home the point that we’re not talking about something that happened half a century ago or even a decade or two ago—this is happening right now. And there were a lot of records in her case. It’s important having documentation, especially when you’re not able to talk to the main person. The best that I could do was get the trial transcript and try to recreate some of the moments [in her story]. That was critical to understanding her case and telling the reader what it looked like.
How did you get access to those important legal documents, and how did you organize them?
It really varies depending on whether the case was filed in state or federal court. For this story, I don’t think that I got anything from PACER [Public Access to Court Electronic Records, the database that provides access to cases filed in federal courts], but if it’s a federal lawsuit, you can get a lot of records from there. [For this story, which involved 11 cases, I went] to the specific counties where the stillbirth cases happened and I had to pull the court records and talk to the clerk. I went online and requested the records, and reached out to the state’s attorney’s offices. I also had to make requests for the police documents from the police departments, and also working with [the case] attorneys to get the records that they had. I didn’t get the documents from one person—I had to go to various sources to get what ended up being this really voluminous set of records.
We know that Black, brown, and poor women are disproportionately prosecuted for pregnancy-related issues. — Duaa Eldeib
With the police records, I wanted to know what the investigative process looked like. Also, it was really important for me to get the autopsy [report for Akers’s case, including the results of the lung float test], because that was such a big part of this. I tried to ask for as many records as I could get, and then when I didn’t get those, I had to narrow my request or get them from somewhere else. We were able to put this spreadsheet together of cases, the status, what records were available, and the lawyers’ names. There’s a lot of work behind the scenes that you don’t see when you see the final published stories.
You also reached out to different medical examiners’ offices to learn how the lung float test was used in practice. How did you go about that?
We had these cases, but I wondered, “Well, what’s happening now?” I was able to get a list of the largest medical examiners’ offices by jurisdiction and I decided to reach out to them. I had no idea what the response was going to be. The first response I got back was, “Oh, we absolutely don’t use this [test]; we don’t trust it; we think it’s inaccurate.” And then the next one came back, and it was the same thing. None of the medical examiners that I reached out to came out with full-throated support. That was this light-bulb moment that even among the largest medical examiner offices in the country, there is a lot of hesitancy—and, in some cases, downright reluctance—to use the lung float test.
Looking back, what do you think were the most important steps in reporting and writing your story?
Having the autopsy report was critical. I highlighted the parts that I thought were important and then I was able to go to the experts and say, “I noticed XYZ: Does this strike you as concerning?” Having [experts] weigh in on what I had seen as concerning was really important. I’d gone to maybe more than a dozen pathologists and medical examiners to make sure that what I was seeing and understanding was correct.
The other thing that’s important for science writers is to put things in context for people. There was a paragraph where I described what this test actually looks like, because, for readers, it feels like this intangible thing, so explaining to them how the test is performed was important.
Also, my initial reporting had a lot of scientific jargon, making it hard to follow. I talked to scientists to ask, “But what does that actually mean?” Explaining that’s critical for writers to get ideas across to their readers.
What changes did the story go through?
I had initially included more stories of women who had been wrongfully convicted, but it was too long—about 6,000 words. [My editor and I] talked through how each section was serving the draft and concluded I was delving too deep in some cases. We ended up cutting more than 1,000 words, which was painful but ultimately made the story better. I had to lose some of my experts and some case details. One of the things that helped was checking parts of the draft against the story’s main point—an unreliable test was being used to help send women to prison after they insisted they had a stillbirth. If the reporting wasn’t related to that, we cut it, no matter how fascinating it was. So, we tried to focus on cases that we felt were different enough to illustrate various points of the story, and the problems with this test.
My first draft didn’t have Moira being convicted until the very last scene and it came as this shock [to the reader]. But then we decided to move that up a lot earlier in the [story] to focus more on the science around this decision and the prosecutors’ focus on the test.
How does this story sit within the current social and legal context?
There are stories that are really rooted in a time in our history and this story felt like that. In Moira’s case, her history of wanting an abortion was brought up in court and used against her. And experts that I talked to expressed this fear that things are only going to get worse.
My role as a journalist is very clear: I’m there to document the facts and the stories. Whatever happens afterwards, happens. — Duaa Eldeib
There’s this misconception that stillbirths happen to sickly babies and very early on in the pregnancy. But I found in interviewing other women who had stillbirths [that] in a lot of these cases, the babies were healthy up until the moment they died in the womb. In some of the court cases, there was almost this disbelief that a baby could have been stillborn and still look healthy. Trying to marry all of that knowledge to present a comprehensive picture is important.
How do you take care of your own mental and emotional health while covering such heavy topics?
It’s a challenge. At the beginning of my reporting on stillbirths, it was a really dark time where I was talking to these women about the loss of a child. I struggled a lot, but what helped was trying to compartmentalize: being in the moment during the interview, but then trying to turn that off to go do other things in my life. The other thing that helped was having a “trauma buddy,” somebody at work that I could talk to about this so it didn’t feel that I was bearing all the weight by myself. My friend and colleague Adriana Gallardo taught me that phrase and the importance of having someone to process such emotional reporting with. Adriana and I were working together on another stillbirth project at the same time and we were able to support each other through that.
And the biggest thing was reminding myself why I was doing this work. That helped me feel that I could handle this, because, at the end of the day, we’re doing important journalism on women who hadn’t had their stories told and have felt so neglected by the system. I felt honored that they trusted me with their stories and trusted me to be able to do this work.
Did you set out to change how the legal system worked?
My role as a journalist is very clear: I’m there to document the facts and the stories. Whatever happens afterwards, happens. In this case, it ended up happening that there was an impact. These law professors [in the Floating Lung Test Research Study Group] decided that they wanted to examine the test and finally come [up] with an informed conclusion as to whether or not they would recommend using it.
It’s a great feeling when somebody says, “Oh, I read your story, and because of that, we’re going to do XYZ.” But it’s very important not to confuse reporting with advocacy. Laws, policies—all of these things often happen because journalism is such a clear fact finder. We were just writing about the truth, and pulling cases that had been scattered and hidden together with expert testimony and all of the other cases. Sometimes our reporting can spur change, but it’s not us. I do hope that my reporting will have an impact, but I don’t advocate for a specific change or policy. Shining a light on the story is what spurs change.
Claudia López Lloreda is a science journalist with a focus on neuroscience, mental health, and psychology. She received her bachelor’s degree in cellular-molecular biology from the University of Puerto Rico, Rio Piedras, and her PhD in neuroscience from the University of Pennsylvania. She was a 2021 Mass Media Fellow at STAT, worked as a news intern for Science, and is now a full-time freelancer. Her work has also appeared in Wired, Undark, Scientific American, Smithsonian Magazine, and Science News. She is currently based in San Juan, Puerto Rico.