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Sharma, B. R. (2006) Historical and Medico-legal Aspects of Infanticide: An overview. Medicine, Science and the
Law 46 (2), 152–156. 10.1258/rsmmsl.46.2.152

This article demonstrates a high level of unreferenced overlap with the following article:

Kellett, R. J. (1992) Infanticide and child destruction — The historical, legal and pathological aspects. Forensic
Science International 53, 1–28.
152 Med. Sci. Law (2006) Vol. 46, No. 2
RETRACTED: Historical and Medico-legal Aspects of Infanticide:
An overview
D
B R SHARMA, MBBS MD
Reader, Dept. of Forensic Medicine and Toxicology, Govt. Medical College and Hospital, Chandigarh –
160030 India
TE
Correspondence: Dr Sharma, # 1156 B, Sector 32 B, Chandigarh 160030, India
Email: drbrsharma@yahoo.com
ABSTRACT
In practice, all cases of abandoned newborn deaths
are reported to the police/coroner, who asks for a
post-mortem examination because only this can
AC
establish the viability of the infant, proof of separate
existence, and the cause and manner of death in
such cases. The pathologist who conducts the
autopsy will have to use his skills and experience
to assess a wide variety of marks and injuries so as
to give his opinion fairly and frankly, not allowing
any personal feelings to influence his findings. In
some cases, he may be unable to give a firm opinion
and should not shirk from stating this clearly. This
paper examines some historical, legal and patholo-
R
gical aspects of infanticide.
INTRODUCTION
ET
The word ‘infanticide’ has been used rather
loosely in the literature on child killing.
Earlier, the term ‘infant’ was used to denote a
person under the age of 21; however, with the
‘age of majority’ having been reduced to 18, the
term ‘minor’ replaced it. The Oxford English
Dictionary defines ‘infant’ as a child during the
earliest period of life, especially a child in arms
R
and suggests the origin of the word comes from
the old French/Latin ‘infans’ meaning ‘unable
to speak’. The Medico-legal Encyclopedia
states that the term ‘infanticide’ is often taken
to mean the killing of any young child, but
should be reserved for the meaning implicit in
the Infanticide Act 1938, that is the killing of a
child under the age of 12 months by its mother,
‘by wilful act or omission’ during a period of
mental disturbance (Mason and McCall-
Smith, 1987).
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Historical aspects
The killing of children, especially by their
parents, goes back to prehistoric times.
Archeological evidence of child sacrifice dates
back to Jericho in 7000 BC. Several early tribal
peoples including Vikings, Irish, Celts, Gauls
and Phoenicians practised child sacrifice by
exposure to the elements as a means of
averting evil or appeasing the gods. In ancient
Greece, infanticide was not only permitted but
in some instances enforced by law to destroy
weak or deformed infants considered to be a
burden on the state, an attitude supported by
Plato and Aristotle. Ancient Rome also
practised infanticide under the Law of Twelve
Tables for similar reasons (Montag and
Montag, 1979). The Bible contains several
allusions to infanticide. The Pharaohs commis-
sioned midwives to destroy all male offspring
of the Hebrews, fearing them as a future
military threat, and Herod ordered the
‘slaughter of the innocents’ at the time of
Christ’s birth.
Infanticide was common in medieval
England, when jurisdiction for these killings
fell to the ecclesiastical courts as it was
regarded as a sin against the church rather
than a crime against the state. Girls fared far
worse than boys, particularly in the poorer serf
classes, raising parallels with female infanti-
cide in many third world countries (Jeffrey et
al., 1984). Child murder continued to be a
significant problem throughout eighteenth
and nineteenth century England. The practice
of ‘baby dropping’, that is the abandonment of
 Sharma: Historical and Medico-legal Aspects of Infanticide: An overview 153
the living newborn in a public place in the hope
that it would be found and cared for by
another, led to the establishment of a found-
lings’ hospital in London in 1741. Many of
these ‘dropped’ babies died of exposure.
Illegitimacy, poor social background, and
working ‘in service’ were the main factors
D
responsible for a mother abandoning her child
(Malcolmson, 1977).
The association between illegitimacy and
infanticide in the mid and late Victorian
TE
England was accentuated by the habit of many
employers regarding young unmarried women
in service as ‘fair game’. But for the woman, an
illegitimate baby meant almost certain loss of
employment and public censure. Accordingly,
the secret pregnancies often ended in infanti-
cide, because registration of stillbirths was not
a legal requirement until 1926 and the only
AC
requirement was a certification of stillbirth by
the midwife who was often in collusion with
the mothers. On the other hand, there were
‘Friendly Societies’ and ‘Building Societies’
that offered a burial insurance to parents
should a child die. For relatively small sums
of money, parents could insure their infants at
birth in several of these ‘clubs’ and make
R
handsome returns upon the death of the child,
which was not always necessarily from natural
causes (Rose, 1986). According to Forbes
(1986), ‘The evil was born of poverty and greed,
ET
nurtured by easy gain and slight risk of
detection, sheltered by public ignorance and
apathy... violence was not required to end a
child’s life; neglect and indifference were
sufficient. Most often the crime was domestic
and private; the closest witnesses could not
testify. Prosecution was difficult or impossible’.
The County Coroners’ Act (1860), which
R
gave coroners adequate remuneration and
greater assistance in holding proper inquests
however, improved the situation enormously.
As a result of this legislation, the number of
inquests as well as the verdicts in cases of child
murder rose sharply (Behlmer, 1979). The
Coroners’ Act (1887) made it mandatory for
the coroners to hold an inquest into all
suspicious deaths. During the mid-to-late
nineteenth century, the quality of coroners
improved. Dr. Thomas Wakley (the country’s
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first medically qualified coroner), Athelstan
Braxton Hicks and Edwin Lankester investi-
gated infant deaths with great thoroughness,
making an invaluable contribution to the
understanding and scale of infanticide in
England (Rose, 1986). However, the state of
affairs continued into the early part of the
twentieth century, until the legal treatment of
infanticide was considerably altered by the
Infanticide Acts of 1922 and 1938.
The Infanticide Act (1922) reduced the
offence of infanticide from murder to man-
slaughter. It applied only to the mother of the
child, and only where it could be shown that, at
the time of the act, the mother was mentally
disturbed due to the effects of giving birth, as it
read:
‘Where a woman unlawfully by any direct means
intentionally causes the death of her newly born
child, but at the time of the act or omission had
not fully recovered from the effect of giving birth
to such child, and by reason thereof the balance of
her mind was disturbed’.
The term ‘newly born’ in the Act was not
further defined and was clearly open to
different interpretations. Its meaning would
have to be established in litigation and as such
the Act was revised in 1938, replacing the term
‘newly born’ by a time limit of 12 months from
birth. Furthermore, the Infanticide Act (1938),
attempts to define puerperal mental distur-
bance for the purpose of the Act. It reads:
‘... the mother who causes the death of her child
under the age of 12 months by wilful act or
omission, 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 reasons of the effect
of lactation consequent on the birth of the child.’
More recently, the social stigma attached to
the unmarried mother and her infant has
become less significant. The Abortion Act
1967 has greatly facilitated termination of a
pregnancy. Undoubtedly, these factors should
have led to a marked reduction in the numbers
of dead babies found abandoned but on account
of a strong association with illegitimacy and
maternal youthfulness the decrease is only
slight.
154 Med. Sci. Law (2006) Vol. 46, No. 2
Medico-legal aspects
The majority of cases of infanticide occur a
very short time after the birth of the baby, and
the body is abandoned, either with or without
some attempt at concealment. The usual
scenario is the finding of the body of a baby
wrapped in towels or plastic bags and aban-
D
doned in a public toilet, dustbin, field or forest.
Attempts at concealment are usually by burial
in a shallow grave, or dumping the body in a
river or the sea. These bodies may subse-
TE
quently come to light as a result of animals
disturbing the ‘grave’, or floods or heavy tides
bringing the body to a bank or shore. The police
become involved in the investigation of these
cases. A forensic pathologist is called in to help
in the investigation and who attempts to
answer three questions, all of which have
important legal consequences:
AC
(1) Was the infant of a gestational age when it
would be capable of sustaining separate
existence (viability)?
(2) If so, did the infant actually achieve a
state of separate existence from its mother
(live born) before it died or did it die before
the onset of birth (dead born), or during
the process of birth (stillborn)?
R
(3) If live born, what was the cause and
manner of death and the time since death?
If a criminal charge of infanticide is to be
ET
laid against the mother, the forensic patholo-
gist must be certain that not only had the
infant achieved separate existence but also
that the cause of death was a deliberate act or
omission on the part of the mother. He must
also, in his evidence, be able to recount his
post-mortem findings and his opinion derived
from them in such a way that the court can
R
draw necessary inferences beyond reasonable
doubt.
The concept of viability
The law states that for the crime of child
destruction, a gestational period of 28 weeks or
more, is prima facie proof that the infant was
viable, that is, capable of achieving and
sustaining a separate existence from its
mother. The Act, however, is silent as to the
ability of a foetus under 28 weeks to achieve
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and sustain separate existence (Infant Life
(Preservation) Act 1929). ‘State of the art’
medical equipment enables an occasional
infant of as little as 22-23 weeks gestation to
survive (Dunn and Stirrat, 1984). The limiting
factor for viability in a newborn premature
infant is the state of maturity of its lungs and
from about 22 to 24 weeks of gestation, the air
sacs of the lungs begin to differentiate from
their primitive foetal state to a more mature
state, which will eventually allow gas
exchange to take place and make respiration
possible. However, before this maturation
takes place, a foetus, although able to take
some air into its air passages, cannot absorb
oxygen into its blood stream, or eliminate
carbon dioxide, that is, it cannot respire in
the true sense of the word. In other words,
although it may be capable of movement and
heart action, it cannot sustain a separate
existence.
Autopsy proof of separate existence
In the absence of witnesses who saw the infant
breathe or cry, the only witness capable of
stating whether the infant achieved separate
existence is the pathologist who examines the
body post-mortem. This is a formidable task
and often the pathologist cannot be certain as
to the facts. Many tests have been suggested
and argued to establish the autopsy proof of
separate existence. In 1667, the Dutchman,
Jan Swammerdam, demonstrated that if the
infant had breathed after birth, its expanded
air-filled lungs would float if placed in water,
and had it not breathed, they would sink.
This test called ‘docimasy’ or ‘hydrostasy’ was
used extensively to determine live birth in
eighteenth century Europe. William Hunter
and Alfred Swain Taylor discounted its relia-
bility in the nineteenth century and the test
gradually fell into disrepute (Behlmer, 1979).
It was established that artificial respiration
(resuscitation) and putrefaction could cause
artefactual expansion of the lungs and a false
positive floatation test. The ratio of the lung
weights to the total body weight was also
described as a test for separate existence on
the premise that the lungs having breathed at
birth, were filled with blood and air, and
 Sharma: Historical and Medico-legal Aspects of Infanticide: An overview 155
weighed more than unexpanded lungs. This
test was also said to be very unreliable
(Behlmer, 1979).
The present day pathologist is also faced
with similar problems. On drawing its first
breaths at birth, an infant’s physiology under-
goes dramatic changes. The lungs expand and
D
change from rather solid plum-coloured organs
to spongy, bright salmon-pink organs. They
become heavier as the blood, which once
bypassed them, now flows through them, and
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because they are now aerated, they will float
when placed in water. Some pathologists
believe that by careful dissection and exam-
ination of the lungs of a dead newborn infant,
it is possible to be reasonably certain as to
whether the infant achieved separate exis-
tence or not (Osborne, 1953), while others
argue that the changes in the lungs are too
AC
variable ever to draw any firm conclusions.
Barcroft (1954) in his work on antenatal and
neonatal respiration outlined certain princi-
ples which cast serious doubts on the process of
deducing independent respiration from the
appearance of the lungs. He stated that:
* Expansion of the lungs by rhythmic, if
intermittent, breathing movements – ‘trial
R
breathing’ – takes place in the foetus in the
latter stages of pregnancy. Amniotic fluid
passes in and out of the air sacs causing
variable degrees of expansion of parts of the
ET
lungs by fluid, not air.
* There is no absolute proof of separate
existence in expansion of the lungs, even
when this seems by naked eye appearance,
floatation tests, and histology to be due to
air. Vagitus may undoubtedly cause some
degree of expansion by air and, moreover,
the child may breathe freely and expand the
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lungs well while parts of it, notably the legs
and feet, are still in the vagina; this would
be at a stage when birth was not yet legally
complete.
* A newborn infant may breathe for hours
after delivery and then die. Subsequent
autopsy examination of the lungs may show
no evidence of expansion, floatation, or
microscopic evidence of aeration. The rea-
son for the apparent paradox is that breath-
ing may never have been vigorous enough to
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cause proper expansion, or the lungs may
have collapsed after death.
* Decomposition of the infant must be
accepted as a bar to any sound opinion.
Putrefactive gases may cause the lungs to
expand and appear aerated, yet be total
artefact (Barcroft, 1954).
Attempted resuscitation (artificial/mouth-
to-mouth respiration) may also cause expan-
sion of the lungs. Although it is said that this
would not give the same appearance as natural
respiration because the peripheral air sacs
would not distend, in practice, this would be an
almost impossible distinction to make. The
presence of ‘gulped’ air in the stomach (demon-
strated at post-mortem examination by open-
ing the stomach under water) is said to be a
corroborative sign of breathing at birth, but
may in a similar manner be entirely arte-
factual due to decomposition, or induced by
artificial respiration.
The presence of milk in the stomach is,
however, reliable evidence that the infant
achieved separate existence. The possibility
of milk having reached the stomach by any
other means than the active sucking and
swallowing of a breathing, living child com-
pletely extruded from its mother is, to say the
least, remote (Polson et al.,1985). Another sign
of considerable importance in examination of
the body is that of ‘maceration’ an aseptic
partial breakdown of the skin and body organs
of the infant which signifies death in utero,
thus ruling out any possibility of separate
existence.
Cause and manner of death
The third obstacle that the pathologist has to
surmount is establishing the cause and man-
ner of death. Clearly a very thorough and
complete autopsy must be carried out with the
use of ancillary tests such as microscopy,
bacteriology etc. Some deaths may turn out to
be due to natural causes, ruling out the
possibility of infanticide. In some cases, there
may be no injuries or other pathological
abnormalities and the cause of death may
remain obscure. In the absence of the proof of
separate existence, these deaths are usually
recorded as stillbirths of unknown cause.
156 Med. Sci. Law (2006) Vol. 46, No. 2
However, in a small number of cases, there
may be marks or injuries on the body of the
infant that evoke suspicion of criminal activity
and demand a more careful assessment by the
pathologist. They may be artefactual, having
an innocent explanation. On the other hand, in
the presence of the evidence of separate
D
existence, they may indicate deliberate efforts
to kill the infant.
Perhaps the most common way that the
infant meets its fate in these circumstances is
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the ‘lack of attention at birth’ and this ‘neglect’
is probably very rarely deliberate. The young,
inexperienced mother giving birth alone and in
a secluded place, probably shocked, weak, and
frightened by the birth, fails to clear the air
passages of the newborn, cut and tie the
umbilical cord, and keep the infant warm.
However, there must certainly be occasions of
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this neglect when the mother abandons her
newborn to its fate. Clear proof that this act of
abandonment was deliberate is virtually im-
possible; however, concealment of the body
may raise the presumption that the act of
inattention was deliberate. Less common ways
that that the newborn may be deliberately
killed include smothering, strangulation,
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drowning, blunt injury and, rarely, stabbing.
CONCLUSION
It is more realistic for the forensic pathologist
to give the cause of death as ‘unascertainable’
ET
unless there is clear post-mortem evidence of
both separate existence and the cause and
manner of death in the live-born infant found
dead under suspicious circumstances. Though
the investigating agencies and the courts by
and large do not like the term ‘unascertain-
able’, in many cases it represents the truth as
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far as the pathologist is concerned. Further-
more, such a ‘cause of death’ would allow the
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investigating agencies and the courts’ coroners
to follow the common law presumption that the
infant was born dead, or if suspicious circum-
stances are present, it may require the
investigating agencies to collect other relevant
evidence or allow greater scope for an open
verdict.
REFERENCES
Barcroft J. (1954) Research on Pre-Natal Life.
Oxford, Blackwell.
Behlmer G.K. (1979) Deadly motherhood: infanticide
and medical opinion in mid-Victorian England. J.
Hist. Med. Allied Sci. 34 (4), 403–27.
Dunn P.M. and Stirrat G.M. (1984) Capable of being
born alive. Lancet 1, 553.
Forbes T.R. (1986) Deadly parents: child homicide in
eighteenth and nineteenth century England. J.
Hist. Med. Allied Sci. 41, 175–99.
Jeffrey R., Jeffrey P. and Lyon A. (1984) Female
infanticide and amniocentesis. Soc. Sci. Med. 19
(11), 1207–12.
Malcolmson R.W. (1977) Infanticide in the
eighteenth century. In: Cockburn J.S. (ed) Crime
in England 1550-1800. Princetown N.J., Prince-
town U.P.
Mason J.K. and McCall-Smith R.A. (1987) Medico-
Legal Encyclopedia. London, Butterworths.
Montag B.A. and Montag T.W. (1979) Infanticide – a
historical perspective. Minn. Med. 62, 368–72.
Osborne G.R. (1953) Infant deaths. In: Simpson K.
(ed) Modern trends in Forensic Medicine. London,
Butterworths.
Polson C.J, Gee D.J and Knight B. (1985) The
Essentials of Forensic Medicine (4th ed). London,
Pergamon Press.
Rose L. (1986) The Massacre of the Innocents:
Infanticide in Great Britain 1800 1939. London,
Routledge and Paul.
ACTS
Abortion Act 1967
Coroners’ Act 1877
County Coroners’ Act 1860
Infanticide Act 1922,1938
Infant Life (Preservation) Act 1929