Recent mass death incidents in Japan and Haiti have again focused attention on the challenge of dealing with large numbers of dead. Focusing on mass death incidents involving large numbers of Canadian victims, including the Titanic, Halifax explosion, Air India bombing and the 2004 Tsunami, the paper researches incidents dating back to the beginning of the 20th Century. By examining each stage of the process including initial response, identification, funerals, communication, religious services and inquests, the paper identifies key changes in the way that mass death incidents are handled. For example, the research identifies greater professionalization and state control of mass death incidents, increased reliance on experts and technology and increased emphasis on accurate identification, through forensics, and causes, through inquests and inquiries.

Drawing on autopoiesis theory, Ward (1999) challenges the established view that the adoption of the English infanticide law in 1922 (amended 1938) is an example of the medicalization of law, insisting that the 1922 Act embodied a lay biological theory and that contemporary psychiatric theories of the ‘insanities of reproduction’ focused on socio-economic, rather than biological, stressors. Both the medicalization and autopoiesis interpretations of infanticide law are misplaced. A broader review of the medical literature discussed by Ward, and of a related anthropological literature he does not treat, reveals a more complex picture: while Ward’s critique of the medicalization thesis is broadly apposite, and an associated anthropological literature was also more socio-economic than bio-racist (Reekie, 1998), there was a bio-medical strand of thought, as well as an equally biological atavistic line of theory regarding infanticide, which ran alongside the socio-economic model. In addition, the expressed biologism of infanticide law, whatever its origins, can still be thought of as contributing to the medicalization of law subsequent to its passage and amendment, especially given the dominance of the bio-medical model in psychiatry since the 1960s.

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The problems of forensic pathologists' court testimony leading to wrongful convictions in cases of infant death, especially where mothers are charged with the offence, and of this testimony possibly involving gross distortion of scientific findings arise, in part, through a systematic misunderstanding by the law, and by judges and jurors, of forensic pathologists', and especially coroners', attitude toward their professional obligations. The law takes forensic pathological and coronial testimony to be “disinterested” scientific fact advanced purely for its inherent value in assisting the truth-seeking element of the trial process, and thus highly reliable as the basis of the exercise of the most coercive powers of government. Those delivering the testimony understand their task as part of a broader, long-standing public health and safety mandate to “speak for the dead to protect the living.” This clash of discursive frameworks has undermined the adversarial element of these trials, not just on a contingent case-by-case basis but over the courses of extended campaigns against child abuse and of professional forensic pathological careers.

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This article provides a sociological analysis of the discursive interpretations of the criminal law mitigation frameworks underpinning infanticide law in England and Canada. The passage of infanticide legislation by the Canadian Parliament in 1948 and 1955 is described. The account is contrasted with Tony Ward’s analysis of the passage of English legislation in 1922 and 1938. The Canadian legislation of 1948 was based on the English Infanticide Act of 1922. Ward claims that his account shows that, despite obvious appearances and the views of socio-legal commentators writing during the 1980s and ’90s, infanticide law is not an example of the medicalization of women’s deviance but, if anything, more closely exemplifies law as an autopoietic system of communication which “enslaves” medical concepts, adapting them for its own strictly legal purposes. We argue that, while Ward’s critique of the medicalization interpretation of infanticide law is broadly apposite, autopoiesis theory provides an overwrought alternative. This is especially true for the Canadian legislation.