Child Destruction

Child Destruction

The Legislation 

Under section 47B of the Offences against the Person Ordinance: 

(1) Subject to subsection (2) any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother shall be guilty of child destruction, and shall be liable to be punished as if he were guilty of manslaughter. 

(2) Notwithstanding subsection (1) a person shall not be guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. 

(3) Where in any proceedings under this section it is proved that the mother had at any material time been pregnant for a period of 28 weeks or more, it shall be presumed until the contrary is proved that the mother was at that time pregnant of a child capable of being born alive. 

Explanation 

Under section 47B, any person who, by a wilful act, and with intent to destroy the life of a child capable of being born alive, thereby causes that child to die before it has an existence independent of its mother, commits the offence of "child destruction", punishable to the same extent as manslaughter, namely by life imprisonment. This offence is not confined to third parties; the mother herself may also be the perpetrator of the offence. 

The offence requires that the child was "capable of being born alive". A child "capable of being born alive" is one able to breathe independently, sustaining life through the respiratory function of its own lungs alone, without any dependence on a connection with its mother. If the medical evidence shows that the foetus was simply incapable of breathing on its own, even with the assistance of a ventilator, this definition is not satisfied, and the termination of the pregnancy does not constitute this offence. 

The law also provides for a presumption: where the pregnant woman was 28 weeks pregnant or more, the court presumes, until the contrary is proved, that the foetus was capable of being born alive. 

Important Exception: Preserving the Mother's Life 

Even where the act causes the death of the child, it does not constitute this offence if it was done in good faith solely for the purpose of preserving the life of the mother. In other words, where a doctor, in an emergency, makes a medical decision in order to protect the life of the pregnant woman, and this causes the death of the child, the law provides an express safeguard.