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 Table of Contents  
Year : 2017  |  Volume : 3  |  Issue : 1  |  Page : 42-46

Infanticide: A Concept

1 Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences, Bhopal, Madhya Pradesh, India
2 Deparment of Forensic Medicine and Toxicology, Gandhi Medical College, Bhopal, Madhya Pradesh, India
3 National Law Institute University, Bhopal, Madhya Pradesh, India

Date of Web Publication31-Mar-2017

Correspondence Address:
Dr. Hans Raj Singh
Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences, Bhopal - 462 020, Madhya Pradesh
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Source of Support: None, Conflict of Interest: None

DOI: 10.4103/jfsm.jfsm_51_15

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Infanticide is killing of a child <12 months of age by a mother who has not fully recovered from the effects of pregnancy, giving birth and lactation, and suffers some degree of mental disturbance. However, in India, infanticide means unlawful destruction of a newly born child and is regarded as murder in law and is punishable under section 302 completely neglecting postpartum psychiatric state of mothers' mind. Several studies have indicated a high incidence of postpartum depression in mother of developing as well as developed countries. The lack of awareness in medical fraternity, legal experts, and society leads to miscarriage of justice. In this article, we have compared legal status of infanticide in various countries vis-a-vis India and thus tried to arrive at a more humane and pragmatic approach in cases of infanticide keeping in mind the psychological state of mother, gender inequality, weak public health infrastructure, and the prevalent practice of homicide of unwanted/female child. A psychiatric or medical assessment model of mother by panel of experts in case of infanticide should be evolved. Information and awareness of postpartum psychiatric illness among medical professionals, legal persons, and society is an important aspect.

Keywords: Compos mentis, infanticide, postpartum depression, puerperium

How to cite this article:
Arora A, Yadav J, Yadav SK, Singh HR. Infanticide: A Concept. J Forensic Sci Med 2017;3:42-6

How to cite this URL:
Arora A, Yadav J, Yadav SK, Singh HR. Infanticide: A Concept. J Forensic Sci Med [serial online] 2017 [cited 2022 Dec 7];3:42-6. Available from: https://www.jfsmonline.com/text.asp?2017/3/1/42/203552

  Infanticide Top

Infanticide at the outset may seem to indicate killing of an infant akin to the term “homicide” which means killing of one human being by another or “suicide” which is killing of self, but is not and its meaning needs to be understood.

Infant is a term used clinically for a child up to the age of 1 year. Infanticide is killing of a child under 12 months of age by a mother who has not fully recovered from the effects of pregnancy, giving birth and lactation, and suffers some degree of mental disturbance.[1],[2] The reason or the cause for infanticide is the altered mental state of the mother. Filicide is a broader meaning word and implies homicide of a child by a parent. The reasons for filicide range from personal to social or environmental and may be further linked to status in society, the practices and laws in force related to use of contraceptives and abortion, the pregnancy being as a result of rape or the baby being unwanted for some reason.

  Infanticide and Puerperal Period Top

The mother after giving birth to the child is said to be in the postpartum or the postnatal or the puerperal period (postafter; partum: delivery; natum: childbirth). This period has immense physical, emotional, social, and endocrinal challenges for the mother and is together responsible for her altered psyche. Puerperium is generally accepted to be the period of 6 weeks after delivery although some consider it to be of 6 months duration. When considered to be 6 months, it is divided into three phases - acute phase: as 6–12 h after delivery, subacute phase: as 2–6 weeks, and delayed phase: up to 6 months after delivery.

  Psychiatric Aspects of Puerperal Period Top

Postpartum mood disorders have been categorized into three types: postpartum blues (baby blues), postpartum depression or postnatal depression (PPD/PND), and postpartum psychosis.[3]

Postpartum blues is a mild postpartum mood disorder, transient phenomenon characterized by sad or labile mood, and tearfulness lasting from a few hours to a few days. PPD constitutes the affective disorders with severity in between the blues and psychosis. Postpartum psychosis is the most severe disorder incapacitating the mother and usually requiring hospitalization. PPD affects 10%–15% of all women who give birth.[4] The American Psychiatric Association (APA) describes postpartum depressive episode as a period of at least 2 weeks of depressed mood or loss of interest in almost all activities and changes in appetite, weight, sleep, psychomotor activity, energy, ability to think, ability to concentrate and ability to make decisions, or recurrent thoughts of death or suicidal ideation, plans or attempts. Dr. Dalton, a British obstetrician, studied PPD and saw an unusual number of women charged with infanticide or who, under the influence of postpartum psychosis, have very nearly killed their children. She noted three varieties of infanticide: those occurring shortly after birth while the mother is acutely psychotic; those occurring with the return of menstruation; and those occurring during “domestic feuds.” According to Dalton, many of these incidents “do not appear in the press or in law reports and remain hidden from the public.” In 1971, Dr. Dalton published the results of a survey conducted on 500 women from birth to 6 months postpartum. She concluded that 7% of the women developed PPD severe enough to require medical treatment although none required hospitalization. Psychiatrists and psychologists now began to appreciate that depression experienced by new mothers extended beyond the postpartum blues.[5] It has been reported that a woman who becomes depressed after giving birth will reject her baby and show hostility toward him or her.[6] About 25%–50% of women who experience PPD have these types of depressive episodes for 6 months or longer.[7]

Postpartum psychosis occurs within 1–4 weeks after childbirth and is suggested as an overt presentation of bipolar disorder that coincides with hormonal shifts after delivery.[8] The symptoms are unusual, delirium-like, and disorganized psychotic symptoms, such as tactile olfactory and visual hallucinations. The mother may be compelled to commit violent acts, and this biologically driven state presents itself as a toxic organic psychosis complicated by affective mood changes.[9],[10],[11]

Epidemiological studies have found high rates of depression in low- and middle-income countries, particularly among women facing socioeconomic difficulties. The incidence of PPD varies in literature from 10% to 15%,[3] 20.7%,[12] and 13%[13] in meta-analysis of earlier studies. The majority of work to date has focused on prevalence rates in Asian countries, with a total of 33 studies conducted in 12 countries in the continent. Wide ranges in prevalence have been reported both within and between countries. Estimates have ranged from more than one-third of women in a given region (e.g., India and Pakistan) to 1 woman in 20 in other regions (e.g., Nepal).[14] Research from India has found that of the 33 women with PPD, 18 delivered a male baby, compared with 53 of the 268 women without depression (relative risk [RR] = 1.02, 95% confidence interval [CI] = 0.53–1.95; P= 0.82). However, 10 of the 33 women with depression had specifically wanted a male child but were disappointed with the gender of the newborn compared with 32 of the 268 nondepressed women (RR = 2.68, 95% CI = 1.38–5.2; P= 0.004). No significant difference was evident between the depression and nondepression groups in the women's preference for a daughter (not a son) and the gender of the newborn. Disappointment with the birth of a female child is associated with the development of PND.[15]

In the Finnish population, PPD was found in 9.5% of women right after giving birth, in 5.9% 2 months after delivery, and in 8% 6 months after delivery.[16] A later study by Hiltunen [17] confirmed that 16.2% immediately after delivery and 13% 4 months after suffered from PPD.[7]

The etiology of PPD is not defined, but many studies suggest that hormonal fluctuation, biological susceptibility, and psychosocial stressors are the factors involved.[18],[19],[20] Harris et al. state that maternity blues are experienced by 30% or more of mothers in the first 10 days after delivery and severe blues can lead to an episode of major depression.[21] They also found a modest association between scores for maternity blues and changes in progesterone concentrations in the saliva (an accurate measure of circulating free progesterone). The maternity blues was associated with high antenatal progesterone concentrations, low postnatal concentrations, and a steep fall in concentration after delivery. They also suggest the possibility that it may be possible to attenuate maternity blues by treating mothers with progesterone.[21] Maternal depression has been found to correlate with problematic lives affected by a multitude of negative factors: a low socioeconomic status, a low level of maternal education, and a younger age of the mother.[22],[23] Depression may also be related to lack of social support, life stress, and marital conflicts.[24],[25] Prenatal depression is identified as the strongest predictor of PPD. If the mother experiences any type of depression during her pregnancy, no matter what trimester, she will be more likely to retain this depression after giving birth. In addition, a woman who experiences postpartum blues within the first few days after giving birth will most likely also experience PPD.[7] PPD is not defined as a separate entity in the International Classification of Disease-10 or the Diagnostic and Statistical Manual of Mental Disorder IV (DSM IV) and the DSM IV uses the postpartum onset specifier only if it starts within 4 weeks after delivery (the World Health Organization 1992; APA 1994).[16] However, PPD is often used as a separate diagnosis in clinical settings.[26] Many studies do not refer to new onset cases only, but look at the prevalence of depression in an inconsistently defined period from 4 weeks to 1 year after delivery.[7]

  Legal Status of Infanticide and Postnatal Depression in Other Countries Top

In 1647, Russia became the first country to adopt a humane attitude and by 1888, all European states except England established a legal distinction between infanticide and murder by fixing more lenient penalties to infanticide. In 1922 and 1938, England passed the Infanticide Act in recognition of the time around childbirth as biologically vulnerable and made infanticide a less severe crime proscribing sentences of probation and mandatory psychiatric treatment for women found guilty. Today, almost all Western societies have adjusted the penalty for infanticide by recognizing the unique biological changes that occur at childbirth.[27]

PPD becomes a legal issue only when a mother takes the life of her child or children, thus involving her in the criminal justice system. This situation occurs when untreated PPD causes unintended consequences not for the mother and the vulnerable child. These consequences can range from simple child neglect, to child abuse to infanticide, the murder or killing of a newly born or young child.[14]

The term “PPD” is generally used to describe a disturbance that can surface sometime after a woman gives birth. Although this disturbance has been used as the basis for the insanity defense within the criminal justice system, determining who actually meets the test for legal insanity is still a major dilemma for many mothers who are charged with murder or manslaughter in the USA.[7]

PPD is not an accepted or established defense for infanticide in the USA. It requires representing and then arguing and it may still be difficult to justify that PND meets the insanity defense test of McNaughton rule. Unless this procedure is executed, even in the USA, it is not possible to ensure rehabilitation for the woman instead of punishment.

Many times, these cases are unable to establish an insanity defense claim in the USA because PPD as a mood disorder may not fulfill the insanity defense test of McNaughton rule, which only has a cognitive focus.[28]

The M'Naughton rule was formulated in England after Daniel M'Naughton was acquitted in 1843 on a charge of murder, when the judges said, “Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proven to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”

It is now recommended that definition of Insanity should not be limited to the M'Naughton test as it focuses only on one aspect of human nature: knowledge. Volitional conduct can also determine a person's actions. M'Naughton's test also does not take into account the degrees of incapacity. Insanity test that still follows M'Naughton need to be reformed to ensure that mothers convicted of crimes reflecting their state of mind at the time of crime was committed are not only punished but also more importantly rehabilitated.[7]

Scholars, physicians, and courts have agreed that PPD in the criminal justice system is an issue that cannot be ignored. Both women and children need protection from this mental illness that incarceration alone cannot provide. Although screening may be recognized as the way to diagnose PPD, it also seems to be the only way of detecting PPD. As a result, it may not always be effective since there seems to be no alternative method to check the accuracy of the diagnosis. In addition, “most women who are depressed after giving birth receive little or no treatment for their depression either because they are too ashamed to admit to their 'unnatural' feelings or because their doctors minimize the importance of their complaints.”[7]

Because mothers living in poverty are uneducated on PPD, have limited access to clinics to get screened for PPD, and are unable to afford quality screenings, they are at a disadvantage compared to higher income women. Consequently, criminal conduct, specifically infanticide, can occur as a result of undiagnosed and untreated PPD.[7]

Many fear that broadening the insanity defense to include PPD will create and may have already created a slippery slope where mothers can be excused of their criminal activity simply by claiming insanity. Contrary to what these critics may believe, adopting a broad insanity test that includes PPD has two important implications. First, the criminal justice system is not ignorant to disorders that limit mental capacity specifically affecting women, and second, the criminal justice system encourages rehabilitation and not just punishment.[7]

Even though PPD is not the most severe mental illness among the three postpartum mood disorders, the APAs DSMs describes postpartum depressive episodes to include “changes in psychomotor activity, ability to think, ability to concentrate, and ability to make decisions: or recurrent thoughts of death or suicidal ideation, plans or attempts.” All these changes are severe enough to cause the person undergoing these changes to commit acts that violate the law. In addition, inadequate social support from family members after a mother gives birth can perpetuate and enhance a mother's depressive disorder - a factor that is highly overlooked in PPD cases.[7]

A study conducted in Japan stated that it is critical for the pregnant women to obtain prenatal education on postpartum mood disorders. Also that early contact with a psychiatrist was the best way to identify the treatment needed for diagnosed depression.[7]

  Legal Status of Infant Death and Postnatal Depression in India Top

The patriarchal society in India and China is one of the main reasons for infanticide in these countries. There are 100 million fewer women in Asia than would be expected and this numerical worldwide deficit in women and increased female child homicide is due to gender specific abortions, female newborn homicide, and neglect.[29]

Case have been reported in the state of South India (Tamil Nadu) and Rajasthan where selective female child homicide is committed by the mother due to poverty by social stress of having a girl child as liability and also fear of family abandoning the mother for giving birth to female child.

One of the cardinal principles of criminal law is based on the maxim “Actus nonfacit reum nisi mens sit rea.” It means that the act itself does not make a man guilty unless his intention was so. From this maxim follows another proposition, “actus me invite factus non est mens actus” which means an act done by me against my will is not my act at all. This means that an act to be punishable by law must be a willed act and at the same time must have been done with criminal intent. The intent and the act must combine to constitute the crime.[30]

A person made “noncompos mentis” by illness is exempted from criminal liability in cases of such acts which are committed while under the influence of his mental disorder.[31]

Therefore, a woman who is going through postpartum disorder may consider that she is not able to understand the nature of act at the time of committing the offense and such an act would not be considered to be willed act, and she is entitled to be exempted from the criminal liability.

The mental condition of the accused at the time of committing the offense is a relevant fact in the Indian Evidence Act. The onus of proving the mental condition of the accused at the time of committing the offense is on the accused but that particular burden of proof is not so heavy in comparison to that of the prosecution. If the accused can create a reasonable doubt, then the benefit of doubt would be given to the accused. If the accused establishes before the court that due to postpartum disorder she was not able to understand the nature of act at the time of committing the offense, then benefit of doubt would be given to the accused.

On the other hand, we cannot ignore the fact that the accused may use this particular ground to kill systematically the child of a particular sex.

In urban area, due to medical technology advancement, female infanticide took the form of female feticide. In urban area with the help of medical report, we may establish the medical condition of the accused at the time of committing the offense.

In rural area still in most part of India, the practice of female feticide is followed. However, it would be very difficult to establish this particular mental condition of the accused at the time of committing the offense in the rural area, where such cases are reported rarely by the family members.

In the present scenario, a female who has committed infanticide has to stand trial for homicide and if proven insane under section 84 Indian Penal Code (which is rarely so) she may be acquitted. However, recognition of PND as a cause of infanticide or reason behind it is still not accepted by the law. In Indian scenario where infanticide has occurred as a result of PND, the female has to plead diminished responsibility. Considering this, the following factors act as a hindrance to plead for diminished responsibility.

  1. Ignorant and uneducated females
  2. Poverty
  3. Poor access to lawyer and lack of awareness
  4. Usually, the females are young mother and would be unable to successfully plead diminished responsibility.

Indian law presumes every major person to be sane unless contrary is proved and the burden of proof is on the defense to prove that unsoundness of mind existed at the time of committing the offense.

There is no reference to lack of control, irresistible impulse, diminished responsibility, infanticide, etc.

If infanticide law is passed:

  • Burden of proof on prosecution. In case where infanticide is claimed for an offense the burden of proof would be on the prosecution to disprove a claim of infanticide beyond reasonable doubt
  • Punishment will include life imprisonment. However, in practice, noncustodial sentence is usually the outcome. This will however open the subject to treatment or hospitalization.[32]

  Conclusion Top

PPD exists in a significant number of women worldwide. In India, more stress factors exist for a larger proportion of the population, and hence, the prevalence is likely to be high. There is also lack of facility of psychiatric assessment in antenatal period. In the event of an infanticide, we should have awareness about it and its magnitude to prevent punishment for an act which on the contrary requires rehabilitation and treatment.

Ideally, we should be able to provide antenatal psychiatric screening to all women, identify those likely to have PND and offer counseling as to how to handle the postnatal period. In the extreme situation of occurrence of infanticide, we would be able to better differentiate a malicious act from an act of Infanticide, with records of clinical evidence of antenatal period and postnatal medical assessment by panel of experts.

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Conflicts of interest

There are no conflicts of interest.

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