Fatal Maternity (part 7): Infanticide Laws

Do these laws meant to be a compassionate lifeline for mentally disturbed mothers help or hinder the justice system and women in general?

May 14, 2025

It confounds some that there exists a law that protects women who murder their children. The crime is horrific; it robs life from those deemed precious in their early years, sometimes hours, of their little lives. Defenseless. Helpless. Voiceless.

Many cry out for the rights of the child and more severe punishments for the mother. She doesn’t deserve leniency, they say. She’s a monster. The child was still a person, too, and deserved to still live. The mother deserves to face the full extent of the law.

Another belief is that these laws insult women and their emotional capabilities, that it belittles them and opens them up to humiliation. It assumes that all mothers who commit neonaticide are mentally disturbed and potentially dismisses the other motives. It sets us back to when women were deemed “hysterical”, and degrades how the world views women’s mental health.

Still a third side claims that infanticide laws protect certain women from spending their lives in prison when they can be rehabilitated and reintegrated into society, with conditions. It saves them; gives them a second chance. After all, if she was found to be out of her mind at the time of the crime, she should be given an opportunity to be better.

Of course, the children deserved their life. But the mother matters too. If she was mentally disturbed, then she should be treated accordingly. If she wasn’t mentally disturbed, she should be held fully accountable.

Enter the argument that the insanity defense is reason enough to do away with infanticide laws. But would it be enough for these specific circumstances under which psychotic mothers murder?

It’s a controversy decades, even centuries, in the making. So, let’s go back.

History of Infanticide

Mothers have killed their young for as long as any living thing has walked the earth. England was by no means the only country to experience this. Asian countries for centuries have practiced sex-selective infanticide, dating back to 1500 BCE. Ancient Jewish beliefs condemned infanticide. Roman law outlawed infanticide in 374 C.E., though allegedly many offenders were never prosecuted.

Christianity has always condemned abortion and infanticide. Some believe that Inuit populations attempted to limit population growth via sex-selective infanticide, according to the New World Encyclopedia. Historical demographics apparently show a large imbalance between sexes of children within Inuit populations.

During the era of U.S. slavery, women who were enslaved sometimes felt it was better to kill her children than it was to force them to endure the lives of their mothers. No freedom, no rights, no life, no light. Only the cruelty experienced at the hands of white slave owners.

Ultrasound technology that made it possible to determine a child’s sex before birth enabled a rise in sex-selective abortions in certain countries like China, Taiwan, India, and South Korea. Boys are seen as more beneficial as they support their families for their entire lives, whereas girls will eventually marry and become part of the groom’s family, eliciting dowry payments from the bride’s family to the groom’s.

In fact, a 2011 study called “The consequences of son preference and sex-selective abortion in China and other Asian countries” (Therese Hesketh, MD PhD, Li Lu, MD PhD, and Zhu Wei Xing, MD MPH) states that in China, there are 32 million more males than females beneath the age of 20.

According to New World Encyclopedia, there are 100 million “missing” women around the world, a part of this attributed to infanticide. The number of women who were born and should have lived have vanished. China still upholds their “one-child policy,” making boys even more valuable. Sex-selective abandonment also means orphanages house many young girls, who often get adopted by North American families, or childless couples in China.

However, infanticide is ironically outlawed in China, as outlined in two of their laws.

“Infanticide by drowning and any other acts causing serious harm to infants are prohibited” states Article 15 of the 1982 Marriage Law. It’s also covered under their 1992 Women’s Protection Law.

I could probably devote an entire post to sex-selective infanticide alone (and if readers are interested, I can but I’ve ranted about this for long enough). Aside from those countries and practices, the instances of infanticide we see align with Phillip J. Resnick’s classifications, the majority being a mix of “altruistic” and “acutely psychotic.”

In contrast, England condemned infanticide from the start. A 2001 paper called “Homicide in Early England” by Randolph Roth says neonaticide indictment rates peaked in the late 1600s. The poor law of 1576 punished unwed parents, limiting relief payments and forcing unwed mothers to name the fathers of their illegitimate children, who were in turn forced to make child support payments.

Not a bad thing, but the prejudice which led to violence and major stigma against unwed mothers was often traumatizing and drove women to desperate things — like filicide. Roth describes instances where the fathers beat the women so that they would miscarry and they’d be free of financial responsibility.

England introduced an infanticide law in 1624. According to Roth, it declared “that a woman who concealed the birth and death of an illegitimate child was guilty of a capital crime, even if it could not be proved that the child had been born alive.” By the 1680s, doctors began doubting the evidence used to determine whether a woman had committed neonaticide.

Junk science used to convict, or legitimate forensics?

In 2023, ProPublica published an article about how the lung float test continues to be used in the U.S. justice system to convict women of filicide, but states that an expert likened this test to a witch trial.

“Autopsies had already proven that gas emitted by decomposition could cause a still born child’s lungs to float and that lung tissue from a child born alive could sink,” Roth writes.

Basically, according to ProPublica, a medical examiner will remove the lungs of the infant during the autopsy, place them in a container of water, and wait. If they float, it supposedly means the child was born alive. If they sink, the baby was stillborn. One ME called it a “simple premise.”

The idea behind is that if the infant had been born alive and took breaths, then air will remain in the lungs when they are put into water, and will float. If no air ever reached the lungs, they will sink.

But is it really so simple? Does something that sounds so medieval truly have merit in today’s forensics?

ProPublica states that this test has been used in at least 11 cases where women were charged with murdering her newborn infant, and helped seal those convictions. This is only since 2013, too. That such a questionable and controversial test is still being used raises many concerns about how fair such a trial really is.

Many MEs compare the reliability of the lung test to the reliability of analyzing bite marks, bloodstain patterns, hair comparisons, and 911 calls. These too have led to wrongful convictions in the past.

Some experts stated that it rings familiar of a test witch hunters used on women: if, after being thrown into a river or lake, she floated, she was a witch. If she sank, she was innocent, but usually died anyways.

It feels like a flimsy piece of evidence for a justice system built on claiming it gives everyone due process.

Dr. Ranit Mishori, the senior medical adviser for the nonprofit Physicians for Human Rights was studying the test at the time ProPublica published this piece, and told the writer that using this test has massive consequences for innocent women.

“Basing something so enormous on a test that should not be used, that has been completely discredited, is absolutely wrong. You can send a person who is innocent to prison for many years,” Mishori said.

This is a massive controversy when it comes to infanticide, and we will explore this in much more depth in a later post about wrongful convictions.

England introduced its current Infanticide Law in 1922, and amended it in 1938. It states that a woman “by any wilful act (sic) or omission causes the death of her child”, if the child is under twelve months old, and she suffered the effects of child birth or lactation after giving birth, then she is to be found guilty of infanticide and given a lesser sentence. Canada’s infanticide law, enacted in 1985, states the same, giving women found guilty of infanticide a five-year sentence. There are about 30 countries with infanticide laws (Friedman and Resnick, 2007):

Canada
Australia
New Zealand
Austria
Brazil
Colombia
Finland
Germany
Greece
Hong Kong
Italy
Japan
Korea
Norway
The Philippines
Sweden
Switzerland
Turkey

The Controversial Law

The right to life

This argument stems from the constitutional right to life, and the right to protection from the law without discrimination to religion, race, or age. People of this side believe infanticide laws discriminate against infants because the law specifies “under twelve months.” They feel it degrades the infant’s existence and deems them not important when the offender gets leniency.

A 2018 article in the Manitoba Law Journal by Scott Mair argues against Canada’s infanticide law with this reasoning. He claims the law “subjects newly born children to be treated differently” because when a woman commits filicide against a child over one year old, she faces the full wrath of the law.

He also says the law is “demeaning to a newly born child’s dignity.”

“One may question how a potential lesser punishment for perpetrators implicates a homicide victim’s dignity and denies them equal status under the law. The answer is that s. 233 (Infanticide Law) does not allow for a lesser punishment for a specific group of homicide victims, it mandates it. A judge could not sentence a woman who has committed infanticide to more than five years imprisonment…” he writes.

The role of murder laws, he continues, is to emphasize how serious the crime is. The infanticide law demeans that and makes it seem as though it’s a lesser crime. He says there is no “reasonable” objection for Canada to uphold the infanticide law and that it is instead an infringement upon an infant’s constitutional right.

The other part of this argument is that women have more options available and face less stigma nowadays as an unwed mother. They have access to birth control and (at least here in Canada) they have access to abortions covered under universal health care. Treatment for mental health issues is also available, even if it costs money without insurance. Safe haven laws are enacted in many places. So, why should a woman get off lightly for murdering her infant?

Another focus is on fathers who are excluded from the infanticide laws. According to a blog by Robyn Horsager-Boehrer, of the UT Southwestern Medical Center, one in ten men suffer from postpartum depression.

“A 2019 meta-analysis of studies found that the highest risk of depression during pregnancy for expecting fathers occurred during the first trimester. The study also showed that postpartum depression was highest among men when the baby was 3- to 6-months-old,” she writes.

She explains that a partner’s depression can bring them into a depressive state. Men can feel excluded from child care, with such a focus on the mother-child bond post-birth. It’s possible to forget that fathers need to bond with their children, too. Family history of depression poses a risk of being hit with postpartum depression, as can the psychological adjustment to parenthood and sleep deprivation.

So, knowing this, why do infanticide laws exclude fathers who are at risk of psychotic mental conditions post-birth? Mothers take time off work after giving birth, whereas fathers usually don’t. They’re subject to similar adjustments (minus how child-birth impacts a woman physically and mentally) while still working. His adjustment is psychological and emotional, but still valid. Financial stress or relationship problems that existed before the baby could also cause depression, or worsen current mental issues.

So, let’s take this one step further: can fathers also experience postpartum psychosis that would make an infanticide law relevant to them?

Yes, they can.

While it might be rare for men to experience postpartum psychosis, or perhaps it’s severely under-researched, it’s possible. A 2012 paper, by Lokesh Shahani at the Southern Illinois School of Medicine, studied a man admitted to a psychiatric hospital days following the birth of his child, worried about the safety of his wife and infant. He didn’t sleep for 48 hours, paced the house, and exhibited paranoid behavior.

He also experienced religious delusions, claiming to receive messages through the newspaper “that bad spirits were trying to harm his baby.”

“He wanted to protect his baby from such spirits and believed God had given him special powers to do so. He mentions his mood was good and he was just worried about his child. He denied any auditory and visual hallucination,” Shahani writes.

The man had no history of mental illness and didn’t drink often or use drugs. His mother had a history of depression, though she was treated and on medication. This was his first child in his three-year marriage. Blood tests all came back normal, and proved he had not recently used drugs. An MRI showed no abnormalities in his brain.

Upon admission, he was diagnosed with “an acute manic episode with psychotic symptoms” and medicated. After six days of hospitalization, he was his normal self, Shahani said. He theorizes that men take on the extra stress of the “protector” role of his family, while perhaps getting less support than the mother. Alternatively, he may suffer a low self-esteem and view the extra help the mother receives as a threat to his new role, Shahani writes. And a troubled childhood could post an identity crisis: what kind of father does he want to be if he had no positive father figure? How does he become what he needed as a child?

Shahani says few studies have been done on postpartum in men, though it is estimated that four to six percent of fathers in the early period following child birth will develop depression.

A 1986 study, “Postpartum Psychosis in the Male” by Stanley Shapiro and Jack Nass, cites the “couvade syndrome” which they describe as “a psychogenic disorder in which the father-to-be experiences and expresses physical symptoms of pregnancy.” This could include somatic and psychological symptoms, and might be brief, or become full “psychotic distortions of reality.”

This study looks at another new father admitted to a hospital after delusions. He “believed that his ‘wife had been murdered by an MD’ and that his ‘baby was deformed.’”

His wife had indeed been pregnant and gave birth to a deformed baby, who died of respiratory failure days later. He was apparently “depressed and erratic for several months after.” His wife became pregnant again and gave birth to a healthy daughter, though witnessing the cesarean section birth seemed to send him into another hysterical episode, with manic behavior in the days after.

He believed he had carried and delivered his own child. He was medicated, though in the next two years he was unreliable about treatment and taking his meds. Delusions continued to plague him. Eventually, he and his wife divorced, and he relinquished his parental rights.

The rest of the study is fascinating, and I’ll link to it below. For now, back on topic.

Yes, men can develop postpartum psychosis and depression. So, it seems the question of why infanticide laws exclude them is rational.

(Ah, the intriguing rabbit holes us true crime bloggers find!)

We turn back to filicide experts Susan Hatters-Friedman and Phillip J. Resnick, along with James Cavney, for a 2012 study called “Mothers Who Kill: Evolutionary Underpinnings and Infanticide Law.”

This paper reminds readers that “younger mothers mothers who kill their child during the first day of life have significantly lower rates of mental illness than older mothers who kill older children.”

Indeed, the cases we’ve seen involved mentally ill mothers who mostly killed children in the toddler years, allowing the mental issues to build up to the point of psychosis. Mothers who commit neonaticide or infanticide tend to have concealed or denied a pregnancy. One could argue such circumstances don’t qualify as a mental disturbance that would make a woman eligible for the defense granted by the law. Sex-selective infanticide should, theoretically, also be an exemption from this defense.

The study points out that New Zealand’s infanticide law includes children up to the age of ten.

“It does not make sense for the mother who altruistically kills her 13-month-old in a state of psychosis not to qualify for an infanticide defense, while a woman who kills her 11-month-old after months of chronic abuse does qualify,” the study says.

They also view the insanity defense as adequate and less exclusionary. It wouldn’t tag only mothers as mentally ill when they kill their children, and level the field with fathers who also suffer. They conclude:

“The present authors suggest the abolition of infanticide laws. Although raising the age of the child to 10 years is an improvement, it does not solve the gender inequality issue. Juries are already biased against fathers who kill their children. Infanticide laws limited to women add the lack of fundamental fairness and equal justice.”

The right of the mentally ill

If infants have a right to life, then so do the mentally ill women who gave birth to them, this side argues. Helen Howard looks at both sides in her 2018 article, “The offence/defence (sic) of infanticide: A view from two perspectives.”

She states that while most mothers who commit infanticide may not be diagnosed with a mental disorder, socioeconomic factors could also play into how one may come to kill her child.

“The suggestion here is not that social circumstances should contribute to a defence for the woman who kills her infant, merely that there should be recognition of other factors, beyond childbirth and lactation, which can contribute to a deterioration in mental health.”

For example, financial stress, domestic violence, severe relationship/marital problems, a history of unresolved trauma, all could play into why a mother might murder her children, even if she isn’t suffering from a diagnosable mental illness.

Howard says taking away the infanticide defense would add another burden to a woman facing charges: she’d have to prove she had a “recognized mental condition” when she may be in denial of the murder, or due to psychosis, doesn’t remember it at all. With the infanticide laws, a mother only needs to prove a mental disturbance, not an actual diagnosis. Removing the law may hold accountable women who kill for reasons not related to a mental illness. But it may also snap away that lifeline for women who do suffer a mental condition and may not be able to prove her state of mind and whether she knew right from wrong. The latter factor alone can be interpreted and twisted in numerous ways by a prosecutor.

Originally, infanticide laws were imposed to protect women from death penalties, the scorn of society, disdain from judges, a jury, and prosecutors. In a justice system that can be harsh, it was meant to be a compassionate lifeline when a woman was truly suffering a mental condition. The problem is that it’s become a default lifeline for any woman who commits infanticide, mentally disturbed or not, Howard argues.

“An exculpatory defence should arise due to a total lack of moral agency. A partial defence should arise where the woman is a moral agent, and therefore criminally responsible, but there are factors which reduce her level of culpability,” she writes.

Another point that supports an infanticide law is how hard it is to diagnose psychosis. Is it part of another mental disorder unrelated to child birth, which invalidates the infanticide law, yet the stress from motherhood was still a driving factor? Or if she is convincing and believable enough, should the court take her at her word, and that of psychologists?

Howard points to the World Health Organization’s (WHO) International Classification of Diseases, which notes that “[m]ost experts in this field are of the opinion that a clinical picture of puerperal psychosis is so rarely (if ever) reliably distinguishable from affective disorder or schizophrenia that a special category is not justified.”

She adds that “difficult cases should not deter the need to provide a principled rationale for attributing/denying criminal responsibility.”

Howard is of the opinion that “abolition in favour of diminished responsibility would achieve a fairer balance between protection of the victim and of the vulnerable defendant.”

Final Thoughts

So, where is the line? How do we hold accountable a mother who has taken the life of her infant, and extend compassion to a woman who is also still human and may need long-term mental treatment?

Howard points out that Ireland does not immediately go for the infanticide law defense, but instead charges an offender with murder first. If it is found that mental disturbance played a part, then they apply the infanticide conviction. It attempts to find a balance between the infant’s right to justice, and the mother’s potential mental condition. Maybe that’s the balance. It’s how the justice system often works in many murder cases: charge the highest offense possible, then lower it should circumstances prove mitigating.

But would it be enough? Could the justice system, the press, and social media known for being hysterical and acclimating to a mob mentality in sensationalizing true crime stories, see past the original charges and actually listen to her story? In a world that throws people into “guilty until proven innocent” purgatory, there is no escaping a reputation once it’s slapped onto someone. Karla Homolka can change her name and move on, but we’ll always know her as the infamous Canadian serial killer. Aileen Wuornos had a tragic backstory and childhood, yet the stigma of sex worker and psycho killer sticks twenty years after her execution. And regardless of which side is right, even Amber Heard will now forever live with the label of a woman who cried abuse that may have not happened, deemed a psycho. Casey Anthony, while never convicted, lives with the notorious reputation as a mother who murdered her toddler because she wanted to party.

Do women still need the protection of infanticide laws? Or can society and the justice system work reasonably enough with an insanity defense to provide a fair outcome to her precious child taken much too soon, and a mother who lost her mind?

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