Infanticide

Ms. DILKI PUNCHIHEWA
LLB (Hons), QLD (UOL)
DOES THE LAW ON
INFANTICIDE NEED TO BE
CHANGED ?

Ms.Dilki Punchihewa | LLB (Hons), QLD (UOL) 2
Abstract
With the introduction of Infanticide Act in 1922, punishment for a
mother, killing her own child took a different turn. The law considered the defendant’s
feelings and sympathized them. However, issues arose with regard to requirements
needed to establish Infanticide and practical difficulties when giving Judgments. The
research essay “Does law on infanticide need to be changed?” Concentrate on those
issues, how UK dealt with them and in addition, uprising issues that may pose a threat to
the law on infanticide. Relying on the analysis of these particular areas, should the law
change for the betterment of victims as well as the defendants.

Introduction
For a layperson, infanticide means an act of a mother killing her
baby. In fact, this was accepted practice in ancient civilizations. According to Laila Williamson,
a famous anthropologist, Infanticide was practiced on every continent and people on every
cultural level. Rather than an exception, it was the rule. 1
However, reasons for infanticide differed according to the epoch. In ancient civilizations, it
started as a sacrifice to god, while in others it was a mode of population control, even Charles
Darwin, the father of evolution believed early men used female infanticide as a population
control method. In the Golden age of Greece and Roman culture, it was due to financial reasons
while in Hindu culture to show the male dominance.
In England from 18th
-19th
century, infanticide was so
unbridled. Unmarried mothers killed their illegitimate children. Hence, the term newborn
murder. At the end of 18th
century, infanticide served a broader meaning of killing, neglect or
abuse of children of all ages. By early 19th
century, this became popular in law manuals, medical
treatises and court records. According to the famous medical journal Lancet, not a single country
has back then come to a stage where child murder is uncommon. People considered it as
unethical and illegalized by giving death penalty.2
However, after several astounding trials of women killing their children, courts along with
medical professionals identified a group of mothers killing their babies not with ulterior motives
but because they were suffering from Puerperal insanity (a mental illness due to not recovering
from effects of giving birth.)
1
Hardness of heart/ hardness of life: The stain of human infanticide- Larry S. Milner (A brief history of
infanticide- general historical evidence)
2
Rex v Sarah Jones and Mary Jones - (1827) 172 ER 285

Analysis of Infanticide Act
In 1922, The Infanticide Act 1922 was introduced which effectively abolished the death
penalty for women who killed their own children because of puerperal insanity. This created the
offence of infanticide and a partial defense to murder. However, this was applicable only when a
newly born (24hours of birth), was killed.
In 1938 The infanticide Act 1922 was repealed, which expanded the law by extending the age
limit to 12 months and by providing what may cause mental instability as not fully recovering
from effects of giving birth or due to effect of lactation.
Sec 1 (1) of the Infanticide Act 1938 3
states the requirements
to establish infanticide as biological mother killing her 12 months old baby deliberately or due
to negligence at a time when her mind has not fully recovered from effect of giving birth or
effect of lactation. If so, she will be punished as, guilty of the offence of manslaughter. However,
today, the punishment given mostly is non-custodial sentence with medical attention. Also
deviating from normal criminal standards4
it is up to the prosecution to disprove infanticide
beyond reasonable doubt.
Again the Act was amended by the coroners and justice Act 2009 Part 2 chapter 1 s.57 by
substituting “notwithstanding” with “if” and after “murder” inserting “manslaughter” to1938
Act.5
3
Infanticide Act 1938 sec. 1
sec 1(1)- " Where a woman by any wilful act or omission causes the death of her child being a child under the age
of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her
not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation
consequent upon the birth of the child, then, if the circumstances were such that but for this Act the offence
would have amounted to murder or manslaughter, she shall be guilty of an offence, to wit of infanticide, and may
for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child”.
4
M'Naghten rules
5
Coroners and Justice Act 2009 (sec.57)
(2)In subsection (1)—
(a)for “notwithstanding that” substitute “ if ”, and
(b)after “murder” insert “ or manslaughter ”.

Issues of Infanticide Law
Most of the issues on Infanticide prevailed around the uncertainty of the requirements needed to
establish infanticide and the case law. On those grounds, arguments were raised to abolish or
amend the law.
The First issue is regarding reference to lactation. It was argued that there
is no link between lactation and psychosis. However, a study carried out by Dr. Maureen N
Marks6
suggests during lactating period a neurotransmitter known as dopamine in the brain
increases, which is a factor to psychiatric illness but effects depend on the genetic predisposition.
Therefore, a surge of dopamine during the lactation may trigger a postpartum mental illness.
Although the evidence is inconclusive, The Law Commission has recommended retaining the
reference to lactation.
The Second problem is about the age limit of the baby. Originally, age was
limited to newly born (24hours of age.) but later extended to 12 month. 7
some critiques argued
that the age should be limited to 3 months after birth as peak incidence of postpartum psychosis
is seen during this period on the contrary some argued that age should be extended up to 2 years
as all the postpartum mental illness will be covered.
However, most of the medical professionals including Viscount Dawson of Penn, the then
president of college of physicians, who introduced the 1938 infanticide bill, stated, “it is rare to
have insanity following child-birth not better within a year.” 8
If the law were to be extended
beyond a year then it would provide means of escaping the law from murder of unwanted
children. The latest evidence supports the fact most postpartum psychiatric disorders resolve
within the first 12 months of giving birth. 9
6
M N Marks, A wieck , A Davies, N Brown, R Mclover and I C Campbell, “Neuroendocrine studies in women at risk
of postpartum psychiatric illness”.(forthcoming)
7
THE EARL OF MUNSTER’s comments, Hansard (HL) vol 108, col 306 (22 march 1938)
8
VISCOUNT DAWSON OF PENN Hansard (HL) Deb 22 March 1938 vol 108 cc292-310, col 296
9
Infanticide consultation meeting, 24th march 2006 (the law commission – murder, manslaughter and infanticide
2006)

The third issue is with regard to Act being limited to biological
mothers. Suggestions were raised to extend the law to fathers, adoptive parents or anyone under
stress of nurturing the child. This was rejected as, the connection between physiologies of giving
birth, (hormonal changes after pregnancy) and psychiatric disorders, which result from those
changes, will fail. Secondly, even though the offence/ defense may be discriminatory toward
biological mothers, extending the law means voluntarily creating an escape route for caregivers
killing with different intentions and circumstances. In concord Police Federation stated, “It
would be used repeatedly by men or other family members, when the real issue had been failure
to control their temper.”10
Professor Leigh a member of the criminal case review commission
said limiting to biological mothers would minimize acceptance of spurious excuses in courts. If a
male parent/ caregiver kill due a psychiatric condition, diminished responsibility will be
available to aid them. 11
Fourth issue suggested merging infanticide with diminished responsibility,
which is another partial defense12
. Both defenses deal with psychiatric conditions. Therefore
why distinguish between postpartum psychosis and other mental disorders when determining
criminal liability? In diminished responsibility, anyone who can establish the requirements may
use it.13
. Nevertheless, in infanticide only a specific group of defendants (biological mothers)
may use it with regard to specific group of victims (infants). In addition, there are procedural
complexities. Burden of proof lies on defendant in partial defense of diminished responsibility14
.
On the other hand, in infanticide burden of proof to disapprove infanticide beyond reasonable
doubts lies on the prosecution. This makes the Infanticide law compassionate toward the
offenders who are victims of their own mind. Lastly, infanticide is not only a partial defense but
also an offence on its own unlike diminished responsibility. Therefore, it is a disadvantage to
merge infanticide with diminished responsibility.
10
The Law commission Murder, Manslaughter and Infanticide- 2006 (page 163)
11
The Law commission Murder, Manslaughter and Infanticide- 2006 (page 163)
12
Homicide Act 1957 sec.2
13
Homicide Act 1957 sec.2(1), (1A)
14
Homicide Act 1957 sec.2(2)

It is necessary to establish causation in any crime. But another
significant feature and issue is with regard to Infanticide Act 1938 is sec.1 (1) which states, there
is no requirement of a causal link between the killing of the child and mental instability of the
defendant. In other words it is not necessary to show mother killed the baby because of
postpartum psychosis. Practically it may not even be possible. Therefore, if a mother kills her
child of age 12 months or less for any reason she is culpable of infanticide as long as at the time
of the murder her mind was disturbed. Which bring us to our next issue How to deal with a
mother who has killed her baby but is in denial?
Issue raised in the famous, yet the saddest case in history of
infanticide R v Kai Whitewind.15
Kai Whitewind (K) alleged her Son (B) had died from natural
causes and strictly denied of having killed her baby. Prosecution argued that (K), who conceived
(B) in unwanted circumstances and had two more children, asphyxiated (B) after becoming
frustrated with his refusal to feed. Defense (K) could not justify infanticide to show imbalance of
mind due to effect of giving birth despite (K) suffering from depression, as she denied killing her
own child. Hence, she was convicted for murder. Thus, if a mother has in fact killed her child
but unable to admit it, maybe because she is too unwell to do so, too emotionally disturbed by
what she has done or too deeply troubled by the consequences of admission of guilt. In such
cases, it is difficult to show psychiatric evidences. Yet it does not imply her denial of killing
means she is mentally stable, it may very well be the opposite. The available alternative method
is under the fresh evidence provision of the Criminal Appeal Act 1968 16
. However, this
procedure may take forever and mother would be held in custody pending appeal until then.17
.
Therefore, now the trial judges are permitted to order a medical examination of the female
following conviction.
15
R v Kai-Whitewind [2005] EWCA Crim 1092(IN THE SUPREME COURT OF JUDICATURE, COURT OF APPEAL
(CRIMINAL DIVISION)ON APPEAL FROM CROWN COURT AT BIRMINGHAM,Mr Justice Gross and a jury)
16
Criminal Appeal Act 1968 sec 23 (2)(d)
17
R v Neaven (2006) EWCA Crim 955

Is it necessary to show intention of murder in order for a charge or for defense of
infanticide to succeed? Issue based on case the R v Gore. 18
In this case, Prosecution argued that
(G) knew she was pregnant hence willfully omitted to seek medical attention. Defense argued
she had not realized she was pregnant until the baby’s head emerged during delivery.
Postmortem examination listed the cause of death as neonatal anoxia. It could be due to
deliberate blockage of nose or lack of attention following delivery. Hence with the available
evidences (G)s plea of guilty of infanticide was accepted. As for the issue, The Court of Appeal
Established there is no requirement to prove all the ingredients of murder before a defendant is
convicted of infanticide. Also as a second effect of the ruling, infanticide maybe applied in cases
that are not homicide at all like the offence of manslaughter as interpretation of willful act or
omission sets negligence below the level of gross negligence needed for offence of manslaughter
to be charged.
18
R v Lisa Gore (Deceased) [2007] EWCA Crim 2789 IN THE COURT OF APPEAL
CRIMINAL DIVISION

Conclusion
As you have seen although validity of certain requirements was challenged, UK
was able to counteract and preserve the law on infanticide because benefits of having the
Infanticide Act outweigh the disadvantages of abolishing or amending it. Case law along with
medical research and medical opinions played an important role in improving Infanticide Law.
At this point you ma y think If Law on Infanticide is stable why change it?
With the development of technology, Medical field and field of law have moved forward
unlocking new areas and creating new issues.
Such issues I discovered while researching that need analysis in depth are “Does the current
definition of infanticide applies to modern day context?” In medical framework, infanticide is a
rare symptom of postpartum psychosis. 19
Risk factors for postpartum psychosis can be
hormonal/physiological changes, genetic predisposition, previous history of psychiatric illness
and environmental factors. 20
However, The Infanticide Act only considers the physiological
changes. Not considering other factors can cause a disadvantage to the mothers. In the case of R
v Kai Whitwind if the other stressors and history of psychiatric illness was considered such her
conviction for murder could have been avoided. It is my suggestion that Instead of only having a
jury allowing a panel of Doctors to be present in the court session and considering their opinion,
will minimize harmful verdicts.
Another issue arose from the case of case of Celine Lesage
(2010) infanticide serial killer killed 6 of her new born-babies. She was having a psychiatric
illness called pregnancy denial and was convicted of aggravated murder under French law. But
if such were to occur in UK, how will the law deal with it? Will the offence/defense of
infanticide be available for her? As she may not be, able to show she was suffering from a
19
Postpartum psychosis: Strategies to protect infant and mother from harm by Susan Hatters Friedman, MD Senior
instructor Departments of psychiatry and pediatrics Phillip J. Resnick, MD Professor, Department of psychiatry
Miriam B. Rosenthal, MD Associate professor emeriti Departments of psychiatry and obstetrics and gynecology
20
Friedman SH, Resnick PJ. Postpartum depression: an update. Womens Health 5:287–95, 2009

disturbed mind at the time of first killing and illness of pregnancy denial is not a part of
infanticide Act.
Meanwhile Ethicists are arguing that infanticide should be legalized in
the name of “after birth-abortion” 21
. The issue escalated due to Netherlands euthanasia license.
Proponents’ claim this should be allowed in all instances where abortions are allowed, as a fetus
and newborns does not have the same moral status as actual persons and the decision to do so
depends on assessment of the baby by a neurologist and psychologists. Allowing after birth-
abortions may be equivalent to legitimizing infanticide. Anyone may carry out this for non-
medical reasons hiding behind the coat of a Doctor and say, it was entirely due to medical
reasons. Our society is not so humble to reject pecuniary advantages.
My admiration on infanticide law lies on all the unique
features it posses like Infanticide being both an Offence and a partial defense, Availability of the
law only to a certain group of defendants and victims, procedural differences like burden of
proof being on the prosecution and mostly because, unlike other laws, infanticide law is
compassionate toward the defendants who are a victim of their own mind.
Now answering the question why I think infanticide law should change is because as you
may have already gathered from the information I presented the world is evolving faster
everyday so if the law cannot accommodate the needs of this new era then the probability of Law
failing is very high. Even though you may think Infanticide law is stable with issues like
reference to lactation, age limit, limitation to biological mothers etc are resolved, it is a matter of
time until, along with the few latest issues, I discussed above many more issues come to the
doorsteps of UK courts.
If a computer security system is not up to date, new viruses may come,
similarly if the Infanticide law is not up to date new issues can arise and destroy this
extraordinary law. Hence, I believe that The Infanticide Act needs changes in order to stay up to
date.
21
After-birth abortion: why should the baby live? (Alberto Giubilin and,Francesca Minerva)
(JME Online First, published on April 13, 2012 as 10.1136/medethics-2011-100411)
Words- 2775

Bibliography
Cases
 R v Kai-Whitewind [2005] EWCA Crim 1092 http://netk.net.au/UK/KaiWhitewind.asp
 R v Lisa Gore (Deceased) [2007] EWCA Crim 2789 http://netk.net.au/UK/Gore.asp
 R v Neaven (2006) EWCA Crim 955
https://www.lexisnexis.com/uk/legal/docview/getDocForCuiReq?lni=59MP-VFR1-DYBP-
P39R&csi=274662&oc=00240&perma=true&elb=t
 Case of Celine Lesage- http://www.theguardian.com/world/2010/mar/15/french-
woman-admits-killing-babies
 Rex v Sarah Jones and Mary Jones
https://www.lexisnexis.com/uk/legal/docview/getDocForCuiReq?lni=59MP-VFR1-
DYBPP39R&csi=274662&oc=00240&perma=true&elb=t-(1827)172ER285
Primary sources- Acts
 Infanticide Act 1922
 Infanticide Act 1938 http://www.legislation.gov.uk/ukpga/Geo6/1-2/36/contents
 Coroners and Justice Act 2009 sec.57
http://www.legislation.gov.uk/ukpga/2009/25/section/57
 Criminal appeal Act 1968 http://www.legislation.gov.uk/ukpga/1968/19/section/23
 Homicide Act 1957 http://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/2
Secondary sources
 The law commission –Murder, Manslaughter and Infanticide (2006)-
http://lawcommission.justice.gov.uk/docs/lc304_Murder_Manslaughter_and_Infanticid
e_Report.pdf

 Murder, Manslaughter and Infanticide: proposal for reform the law (CP19/08) 2008-
http://webarchive.nationalarchives.gov.uk/20100505212400/http:/www.justice.gov.uk/
consultations/docs/murder-manslaughter-infanticide-consultation.pdf
 Summary of the response and governmental position (Jan 2009)
http://webarchive.nationalarchives.gov.uk/20100505212400/http:/www.justice.gov.uk/
consultations/docs/murder-r eview-response.pdf
 INFANTICIDE BILL.HL Deb 22 March 1938 vol 108 cc292-310 -
http://hansard.millbanksystems.com/lords/1938/mar/22/infanticide-bill-hl
 After-birth abortion: why should the baby live? (Alberto Giubilin and,Francesca Minerva)
http://jme.bmj.com/content/early/2012/04/12/medethics-2011-100411.full.pdf+html
 Postpartum psychosis: Strategies to protect infant and mother from harm by Susan
Hatters Friedman, MD Senior instructor Departments of psychiatry and pediatrics Phillip
J. Resnick, MD Professor, Department of psychiatry Miriam B. Rosenthal, MD Associate
professor emeriti Departments of psychiatry and obstetrics and gynecology-
http://www.currentpsychiatry.com/fileadmin/cp_archive/pdf/0802/0802CP_Article2.pdf
 Friedman SH, Resnick PJ. Postpartum depression: an update. Womens Health 5:287–
95, 2009 http://www.futuremedicine.com/doi/abs/10.2217/whe.09.3

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