“Is 20 Weeks a Miscarriage or a Stillbirth?” Giving Birth, Funerals, Certificates, Leave and Payments
In this guide
If you lost your baby around 20 weeks and are trying to understand what it’s called, what you have to do, and what you are entitled to, this guide is for you. It explains the 20-week line in NSW, what giving birth involves, time with your baby, certificates and registration, funerals, leave from work, government payments, and how the line affects any legal claim. It is written to be read in small pieces, when you can.
Quick answer · updated November 2026
In NSW, a baby born without signs of life at 20 weeks or more, or weighing at least 400 grams, is stillborn and must be registered. Before 20 weeks, it is a miscarriage, and you can apply for a free certificate. A baby born alive at any gestation is registered as a birth. See the comparison.
After your baby is born, stage by stage
- 1The birthUsually labour, induced with medication. You can ask questions first.
- 2Time togetherSeeing, holding, photos and mementoes, at your pace.
- 3PaperworkA certificate or registration, depending on weeks and signs of life.
- 4FarewellA funeral, cremation or burial, arranged by you or the hospital.
- 5Work and moneyLeave, payments and going back when you are ready.
At any stage: nothing has to be decided in the first hour. You can ask for time, and you can change your mind.
She was born at nineteen weeks and six days. I know the exact count because the midwife wrote it on the little card in the cot, and because, three weeks later, an HR form asked me to tick a box: miscarriage or stillbirth.
I sat at the kitchen bench with the form and the card, and I couldn’t do it. I had laboured for fourteen hours. I had held her. She had a name, and fingernails. One more day, and the law would have called her stillborn and I’d have had to register her. One day less, and she was a miscarriage, and the form wanted me to tick it and come back to work.
My manager rang to “check in”, and said, kindly, “Take whatever you need, just let me know about Monday.”
I didn’t know what I needed. I didn’t know what I was allowed. I didn’t even know what to call her.
A composite story, drawn from the experiences of many families I have worked with, combined and changed so that no one can be identified. It does not describe any individual client.
If you are reading this with an HR form in front of you, or a funeral director’s number, or a certificate application you can’t bring yourself to fill in, I am so sorry. A few days either side of 20 weeks changes the words, the paperwork and some of your entitlements. It doesn’t change what you lost, and it doesn’t change what you went through to give birth.
This article is part of a series on failed cerclage and second-trimester loss, but it is for anyone who lost a baby around the middle of pregnancy, for any reason. It covers giving birth, time with your baby, certificates and registration, funerals, leave and payments, and how the 20-week line affects a legal claim.
Why I can write this
I have been a medical negligence lawyer since 2013 and have worked on many hundreds of claims, a great many of them about pregnancy and birth. My doctorate looked at patterns of failure in medical negligence. I am not medically qualified. The practical information here is checked against NSW Government, Fair Work Ombudsman, Services Australia and Pregnancy, Birth and Baby pages, all listed at the end. Rules and payment amounts change, so please check the linked pages for the current position.
Start with your question
- Is 20 weeks a miscarriage or a stillbirth?
- Do you have to give birth at 20 weeks?
- Can I see and hold my baby?
- Do I need to register my baby?
- Do you bury a stillborn baby at 20 weeks?
- What leave can I take?
- Stillborn Baby Payment or Parental Leave Pay?
Is 20 weeks a miscarriage or a stillbirth?
Definition
In NSW, a baby is stillborn if they died after 20 weeks of pregnancy or weighed more than 400 grams, and a doctor makes this determination [1]. A loss before 20 weeks, or under 400 grams if the weeks aren’t known, is an early pregnancy loss or miscarriage [1]. Pregnancy, Birth and Baby describes a loss between 13 and 20 weeks as a late miscarriage [2].
In plain terms: the line is 20 weeks, or 400 grams. A baby born alive at any gestation is different again: their birth is registered, and if they die, so is their death.
Before 20 weeks, no signs of life
- Called
- Miscarriage; late miscarriage from 13 weeks
- Registration
- Not registered [1]
- Certificate
- Free early pregnancy loss certificate, any time [1]
- Leave
- 2 days’ compassionate leave; unpaid special parental leave if not fit for work and the pregnancy ended after 12 weeks [3]
- Payment
- Stillborn Baby Payment and Parental Leave Pay don’t apply
20 weeks or more, no signs of life
Born alive, at any gestation
- Called
- A live birth; if your baby dies, a neonatal death
- Registration
- Birth must be registered, then the death [1]
- Certificate
- Birth certificate, and a death certificate [1]
- Leave
- Up to 12 months’ unpaid parental leave for eligible employees, and compassionate leave [3]
- Payment
- Ask Services Australia about Parental Leave Pay and other help
Sources: NSW Government [1]; Fair Work Ombudsman [3]; Services Australia [4]. Other states and territories use the same 20-week and 400-gram line, but their processes differ.
Do you have to give birth at 20 weeks?
Usually, yes, and for many women this is the most shocking part. Pregnancy, Birth and Baby explains that after a late miscarriage, labour and birth are usually needed: your doctor may give medicine to start labour, or sometimes recommend a surgical procedure instead [2]. Queensland Health explains that after a baby dies beyond 20 weeks, you will still need to give birth, that you can often wait for labour or have it started, and that a caesarean isn’t usually recommended without a medical reason, because a vaginal birth is quicker to recover from [5].
You are entitled to pain relief, to have someone with you, and to ask for a more private space; Pregnancy, Birth and Baby notes that labour ward care can be hard and that you can ask for one [2]. Afterwards, you may bleed for up to two weeks, and should see your doctor within four to six weeks [2].
Questions to ask
- “What are my options for the birth, and the risks of each?”
- “Can I have a private room, away from the sounds of other babies?”
- “What pain relief can I have?”
- “Can my partner or a support person stay with me the whole time?”
Time with your baby
You will usually be offered the chance to see and hold your baby if you want to, and time with family, photos, and hand and footprints [2]. Queensland Health adds that you can bathe and dress your baby, that other children and family can meet them, that you can ask for photos even if you aren’t ready to look, and that sometimes it’s possible to take your baby home for a few days [5]. There is no right way to do this, and you can change your mind.
Things you can ask for in hospital
- Time, without being rushed
- To see, hold, bathe and dress your baby
- Photos, even if you aren’t ready to see them yet
- Hand and footprints, a lock of hair, the cot card and bracelet
- Family, including other children, to meet your baby
- Cultural or religious rituals, such as a blessing
- Whether you can take your baby home for a time
- A social worker to help with arrangements
In plain terms: this is your baby and your time. Staff will help with whatever you choose.
Sources: Pregnancy, Birth and Baby [2]; Queensland Health [5]; Red Nose [6].
Tests to understand why
You will usually be offered tests to try to understand why your baby died, such as an examination of the placenta, blood tests, or an autopsy. Queensland Health explains that these are optional, that an autopsy can be full, limited or external, and that results can take a couple of months [5]. Pregnancy, Birth and Baby lists possible causes of late miscarriage that tests may look for, including problems with the placenta, infections, and uterine or cervical problems [2].
The placental pathology report is especially important if you have questions about your care, because it often shows whether infection was present. Ask for the written report, and for a follow-up appointment to go through it. My guide on how to ask for a birth debrief has questions to take.
Certificates and registration
Before 20 weeks: the early pregnancy loss certificate
A loss before 20 weeks isn’t registered in NSW, but you can apply for a free early pregnancy loss commemorative certificate [1]. You can apply at any time, with no time limit, by email, post or at a Service NSW centre. The certificate can include your baby’s name, or “Baby of” if you prefer, your names, and the place and date of the loss [1]. If you aren’t sure of the exact date or place, you can give an estimate [1].
20 weeks or more: registering a stillbirth
A stillbirth must be registered by law. In NSW, registration is free and online, and the record shows your baby as stillborn [1]. Stillbirths are recorded in the births register, not the deaths register [1]. You can give your baby a name. Red Nose also offers naming certificates [6].
Born alive: registering a birth and a death
If your baby was born alive, at any gestation, the birth must be registered, and a death certificate can’t be issued until it is. A funeral director can register the death and apply for the death certificate for you [1].
Funerals, burial and cremation
Red Nose explains that, as with any death, the body of a stillborn baby or a baby who has died must be buried, cremated or placed in a mausoleum [6]. You can arrange this yourself through a funeral director, or ask the hospital what it can arrange. Queensland Health notes that hospital arrangements often have no cost but families usually can’t attend, while a funeral director can arrange a personal ceremony, usually for a fee, and some offer reduced prices after a stillbirth [5]. Arrangements in NSW are similar, but ask your hospital social worker what applies where you are.
Before 20 weeks, there is no registration, but you can still choose a private funeral, cremation or burial. Ask the hospital what options there are for your baby’s care after birth, and take the time you need to decide.
Leave from work
The Fair Work Act sets minimum entitlements; your award, agreement or employer may give you more.
Compassionate leave
2 days per occasion, after a miscarriage or a stillbirth, for you or your spouse or de facto partner. Paid for permanent staff, unpaid for casuals [3].
In plain terms: both parents can take it.
Unpaid parental leave
After a stillbirth, or a baby’s death in the first 24 months: up to 12 months for eligible employees, or 24 by agreement. Your employer can’t cancel it or call you back early [3].
In plain terms: you don’t lose it because your baby died.
Unpaid special parental leave
If you aren’t fit for work because the pregnancy ended after 12 weeks other than by the birth of a living child. It doesn’t apply to stillbirth [3].
In plain terms: this is for a late miscarriage.
You can go back to work earlier than planned if you choose, by agreement or with written notice [3]. If you have questions, the Fair Work Infoline is 13 13 94 [3]. If you are unwell, personal leave and a medical certificate from your GP may also apply.
Stillborn Baby Payment or Parental Leave Pay
After a stillbirth, Services Australia lets families claim one of two payments, but not both [4]. For payment purposes, a stillborn baby is one who did not breathe or have a heartbeat after birth, and was at least 20 weeks or 400 grams [4].
- Stillborn Baby Payment: a one-off, tax-free payment, $4,326.57 as at July 2025, subject to a family income test and with no work test [4].
- Parental Leave Pay: a taxable weekly payment, for up to 24 weeks for births from 1 July 2025, subject to income and work tests, with part reserved for a partner [4].
Services Australia’s own guidance describes Parental Leave Pay as generally the more beneficial payment for a stillborn baby [7], but it depends on your circumstances. You can claim through your Centrelink online account. If you’d already made a pre-birth claim, you can sign in, choose “Add newborn”, and indicate that your baby was stillborn [4]. A hospital social worker can help.
I went back to work after eight weeks. Before I did, I filled in the early pregnancy loss certificate application at the same kitchen bench. Her name. My name, his name. The date. When it came in the post, with the little emblem at the top, I sat on the front step and cried, because it was the first piece of paper that said she had existed.
The HR form, I didn’t tick. I emailed my manager instead. I wrote that I had given birth to our daughter at nineteen weeks and six days, that I had taken compassionate leave and some personal leave, and that I’d be back on a Monday, on reduced hours for a month.
She wrote back one line: “Thank you for telling me her name.”
Some days at work are fine. Some days a pregnant colleague walks past and I go to the bathroom for ten minutes. But I know now that there was nothing I should have ticked. There was a baby, and she had a name.
A composite story, drawn from the experiences of many families I have worked with, combined and changed so that no one can be identified. It does not describe any individual client.
What to keep, and what to look for in the records
| Document | Why it matters |
|---|---|
| Birth record or discharge summary | Records gestation, weight and whether there were signs of life, which decide stillbirth, miscarriage or live birth. |
| Medical certificate of the cause of death | Needed for registration and payments, and records what was thought to be the cause. |
| Registration or early loss certificate | Your official record, and often needed for leave or payment claims. |
| Placental pathology and autopsy reports | Often show whether infection, the cervix or another cause was involved. |
| Antenatal and scan records | Show what was known before the loss, such as cervical length or symptoms reported. |
| Phone and triage notes | Show what you reported and what you were told before you came in. |
| Follow-up and debrief notes | Show what the hospital told you about why, and any plan for next time. |
My guide to getting and reading your birth records explains how to request them, and the Information and Privacy Commission explains your right to your own health information in NSW [8].
How the 20-week line affects a legal claim
Most losses around 20 weeks are no one’s fault. Some follow care that fell short: a short cervix not followed up, a stitch not offered, or symptoms brushed off. If you have questions, the law looks first at the care, not the week.
Standard of care. Under section 5O of the Civil Liability Act 2002 (NSW), care isn’t negligent if it was widely accepted in Australia by peer professional opinion as competent practice [9]. Guidelines are evidence of competent practice, not the law itself.
Causation. Better care must probably have changed what happened; a lost chance alone isn’t enough: Tabet v Gett [2010] HCA 12 [10].
Consent. You are entitled to be told about material risks and reasonable options: Rogers v Whitaker [1992] HCA 58 [11].
Who can claim: this is where the line matters. After a miscarriage or stillbirth, the claim usually belongs to the mother, for her own physical and psychological injury, and a partner may have a claim for a recognised psychiatric illness. If your baby was born alive and then died, the family may also have a claim under the Compensation to Relatives Act 1897 (NSW). If a baby survived with lasting injury, the child may have a claim of their own, and their time limits don’t always wait until they turn 18, so please ask early.
The series article “Can I Sue the Hospital for My Miscarriage or Stillbirth?” explains who can claim, what a claim can cover and how the time limits work, and my page on pregnancy loss and stillbirth claims explains how a review works. My guide to time limits in NSW has more.
In my practice
Families often come to me months after a loss around 20 weeks, and the first thing many say is, “I didn’t know if it counted.” The 20-week line shapes so much of what follows, the paperwork, the leave, the payments, that it can quietly shape what people think they are entitled to ask about the care too. I see a pattern: a mother whose baby was born at 19 weeks is treated, administratively, as having had something smaller, and so is everyone else, including her. Nobody offers a debrief. The placental report is never followed up. The questions she has about a scan or a phone call stay unasked. In law, the gestation matters for some things. It doesn’t decide whether your care was right.
Both can be true
The legal line at 20 weeks is real, and it has consequences you need to know about. And your loss is not measured by it. You can fill in the form that says “miscarriage” and still know you gave birth to your daughter. You can be grateful for the midwife who wrote her weight on a card and still want answers about why she was born so soon.
The bigger picture
Stillbirth affects more than 2,200 Australian families each year, about six babies every day, and research suggests 20 to 30% could be avoided [12]. Families have pushed for many of the changes described here: since 2020, the Fair Work Act has protected unpaid parental leave after stillbirth and infant death, and since 2021 it has given compassionate leave for miscarriage [3][13]. In NSW, the early pregnancy loss certificate recognises losses before 20 weeks that the register doesn’t [1]. The NSW Select Committee on Birth Trauma reported on 29 May 2024, with 43 recommendations [14].
Support
These services are free.
- Red Nose Grief and Loss, 24/7 support after pregnancy loss, stillbirth or the death of a baby: 1300 308 307 [15]
- Bears of Hope, pregnancy and infant loss support: 1300 11 4673 [16]
- PANDA, the National Perinatal Mental Health Helpline: 1300 726 306 [17]
- Fair Work Infoline, for questions about leave: 13 13 94
- Pregnancy, Birth and Baby, a free call with a maternal child health nurse: 1800 882 436
- Lifeline, if you are in crisis: 13 11 14
Pregnancy, Birth and Baby keeps a list of miscarriage and pregnancy loss support services, and my guide to finding support after birth trauma in Australia has more.
The mother in the stories keeps the certificate in the same box as the cot card. On the card, in a midwife’s handwriting: 19 weeks 6 days. On the certificate, in print: her name.
With care,
Rosemary
Frequently asked questions
Is 20 weeks a miscarriage or a stillbirth?
In NSW, a baby born without signs of life at 20 weeks or more, or weighing at least 400 grams, is stillborn. Before that, it is a miscarriage. A baby born alive at any gestation is a live birth.
Do you have to deliver a baby at 20 weeks?
Usually, yes. Labour is generally induced with medication, though sometimes a surgical procedure is recommended before 20 weeks. A caesarean isn’t usually advised without a medical reason.
Do you bury a stillborn baby at 20 weeks?
A stillborn baby must be buried, cremated or placed in a mausoleum. You can arrange a funeral yourself or ask the hospital what it can arrange.
Do I have to register a miscarriage at 19 weeks?
No. In NSW, losses before 20 weeks aren’t registered, but you can apply for a free early pregnancy loss certificate at any time.
What leave do I get after a stillbirth?
Two days’ compassionate leave, and, if eligible, up to 12 months’ unpaid parental leave that your employer can’t cancel. After a late miscarriage, unpaid special parental leave may apply.
Can I get the Stillborn Baby Payment and Parental Leave Pay?
No, one or the other. Services Australia generally describes Parental Leave Pay as more beneficial, but it depends on your income and work history.
Questions about the care you received?
When you’re ready, and not before, I can go through what happened and your records with you, and tell you honestly whether there are questions worth asking.
When the Stitch Doesn’t Hold: the series
- “What Happens If a Cerclage Fails?” Failed Cerclage and Losing a Baby in the Second Trimester
- “Can I Sue the Hospital for My Miscarriage or Stillbirth?” Time Limits and Compensation After a Second-Trimester Loss
- “Do They Check Your Cervix at the 20-Week Scan?” Short Cervix, Funnelling and Missed Risk Factors
- “How Do You Know If Your Cerclage Is Failing?” Signs of a Failing Stitch or an Incompetent Cervix, and When They’re Brushed Off
- “Emergency Cerclage at 20 Weeks”: Rescue Stitches, Bulging Membranes, Risks and Success Rates
- “My Water Broke at 20 Weeks”: PPROM, Infection After Cerclage and What Happens Next
- “Baby Born at 22 Weeks”: Survival Rates, NICU and Comfort Care
- “Is 20 Weeks a Miscarriage or a Stillbirth?” Giving Birth, Funerals, Certificates, Leave and Payments (you are here)
- “Why Am I So Angry After My Miscarriage?” Anger, Blame and “Is It My Fault?” After a Second-Trimester Loss
- “Transabdominal Cerclage in Australia”: Before Pregnancy, Success Rates and When It Fails
- “Pregnant Again After a Second-Trimester Loss”: How Long to Wait, a Preventative Stitch and Progesterone
More: Pregnancy loss and stillbirth claims · Birth trauma and obstetric negligence · Stillbirth and wondering if it could have been prevented · Birth trauma and the things people say
References
- NSW Government, Miscarriage, stillbirth and loss of a newborn.
- Pregnancy, Birth and Baby (healthdirect Australia), What is a late miscarriage?, last reviewed September 2025.
- Fair Work Ombudsman, Understanding parental leave following the loss of a pregnancy or a child.
- Services Australia, Deciding between Parental Leave Pay and Stillborn Baby Payment, page last updated 1 July 2025.
- Queensland Government, Having a stillbirth.
- Red Nose Grief and Loss, Your rights and obligations or decisions when your baby has been born still or died soon after birth, last reviewed February 2025.
- Services Australia, Eligibility for Stillborn Baby Payment (operational blueprint).
- Information and Privacy Commission NSW, Fact sheet: Accessing your health information in NSW.
- Civil Liability Act 2002 (NSW), s 5O.
- Tabet v Gett [2010] HCA 12.
- Rogers v Whitaker [1992] HCA 58.
- Centre of Research Excellence in Stillbirth, stillbirthcre.org.au.
- Australian Public Service Commission, Changes to compassionate leave for miscarriage.
- NSW Legislative Council Select Committee on Birth Trauma, Birth trauma, Report 1, May 2024.
- Red Nose, Grief and Loss Support Services.
- Bears of Hope Pregnancy & Infant Loss Support, bearsofhope.org.au.
- PANDA, National Perinatal Mental Health Helpline.
The stories in this article are composites, drawn from the experiences of many families I have worked with, combined and changed so that no one can be identified. They do not describe any individual client.
About the author
Dr Rosemary Listing, PhD (Law), specialises in medical negligence, has been in practice since 2013, and is Of Counsel at Peter Evans & Associates in Newcastle, NSW. Her doctorate looked at patterns of failure in medical negligence, and she teaches health law at the University of Newcastle. She is not medically qualified; information in this article is checked against the sources listed.
Last updated: November 2026 · First published: November 2026 · Next review: May 2027
Cite this article: Rosemary Listing, ‘“Is 20 Weeks a Miscarriage or a Stillbirth?” Giving Birth, Funerals, Certificates, Leave and Payments’ (Reframe Legal, November 2026) <https://reframelegal.com/is-20-weeks-a-miscarriage-or-stillbirth/>.
This article is general information, not legal, medical or financial advice. Rules and payment amounts change; please check the linked pages for the current position. If you or your baby need urgent help, call 000. If you are in crisis, call Lifeline on 13 11 14.
Legal services are provided by Peter Evans & Associates.
