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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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.