Infanticide

Infanticide 

Under section 47C of the Offences against the Person Ordinance (Cap. 212): 

Where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 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, notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she shall be guilty of infanticide, and shall be liable to be punished as if she were guilty of manslaughter. 

Explanation

The offence of infanticide is confined to a case in which a mother kills her own child. Even where another person kills an infant, the case cannot be dealt with as infanticide. 

The act or omission causing death must occur while the child is under the age of 12 months. The child may, however, in fact die after it has reached the age of 12 months. In other words, the material point in time is whether the child was under 12 months old when the "mother's act or omission" occurred, and not the child's age at the time of death. 

The core element of infanticide is that, at the time of the act or omission causing death, the balance of the mother's mind was disturbed, and that disturbance must have been caused by one of the following: 

• the mother's not having fully recovered from the effect of giving birth; or 
• the effect of lactation consequent upon the birth of the child. 

Even if the mother's post-natal mental condition was not caused solely by childbirth, but arose in part from a mental condition already existing before the birth, this does not necessarily exclude the application of infanticide. It is sufficient that the "failure to recover fully from the effect of giving birth" was an operative or substantial cause of the disturbance of the balance of her mind. The effect of childbirth need not be the sole cause. 

Where a mother is charged with murder and wishes to rely on infanticide in substitution for murder, she must first adduce some evidence showing that, at the time of the act or omission causing death, the balance of her mind may have been disturbed by the effect of childbirth or lactation. Once there is sufficient evidence to raise the issue, the prosecution must negative that evidence; otherwise, the jury may consider whether it should return a verdict of infanticide rather than murder. 

Sentencing Principles 

Where a mother had the mens rea required for murder but is convicted of infanticide because the requirements of the offence of infanticide are satisfied, the court may sentence her as for manslaughter. In other words, the maximum penalty is life imprisonment, but the court has a sentencing discretion. However, a custodial sentence is very rare. The court will generally make a probation order, on the basis that what the defendant usually needs is support, counselling and supervision rather than punishment.