The Insanities of Reproduction: Medico-legal Knowledge and the Development of Infanticide Law

Abstract

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.

“A View You Won’t Get Anywhere Else”? Depressed Mothers, Public Regulation and ‘Private’ Narrative

“…Infanticide law is based in highly problematic notions of an unstable and 'hysterised' feminine body and mind: ideas active since Hippocrates mooted that postnatal 'madness' might be 'lactational insanity', milk going to the brain. Although there is scant evidence for insanity due to lactation, and the concept relates more to issues of exhaustion and malnutrition in poor working mothers which were urgent at the time of the original enactment of the Infanticide Act in 1922 (Ward 1999;Kramar and Watson 2006), the Law Commission recently refused to alter the Act to remove references to lactation (2006, p. 159). The law still provides for a charge of manslaughter rather than murder if ''at the time of the act or omission the balance of [the mother's] 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''.…”

Canadian Infanticide Legislation, 1948 and 1955: Reflections on the Medicalization/Autopoiesis Debate

“…and expertise, it was only a correction of the lay theory embodied in the original legislation, reflective of a primarily socioeconomic, as opposed to biomedical, psychiatric orthodoxy. Thus, despite the reservations we have expressed elsewhere regarding Ward's characterization of the contemporary psychiatric thinking as lacking reductively biomedical and otherwise biological strands (Kramar and Watson 2006), his argument that no such theory was the basis of the biologism of either piece of English legislation seems sound.…”

“…We have argued elsewhere (Kramar and Watson 2006) that, while Ward successfully demonstrates that the 1922 Act did not reflect contemporary psychiatric orthodoxy and, indeed, that the legislators were not concerned with psychiatric theory, there was a clear strand of distinctly biological theorizing that ran alongside, and was entangled with, the dominant socioeconomic theories. We also argued that infanticide law may have facilitated the medicalization of infanticide in the decades between its passage and the present day, whatever the intentions and knowledge-base of legislators.…”

“…The mandatory death penalties which accompanied these rare murder convictions were always commuted (Backhouse 1984;Kramar 2005;Ward 1999:164-5). That these problems provided the impetus for infanticide law, which was an attempt to fashion an appropriate homicide offence which could result in principled conviction and disposition, is accepted by all the commentators (see Comack 1987;Backhouse 1984;Edwards 1984;Kramar 2005;Kramar and Watson 2006;Laster 1989;O'Donovan 1984;Osborne 1987;Scutt 1981:7-9;Showalter 1985;Smart 1989;1992;Ward 1999;Wilczynski 1991;1997).…”

Criminalising Neonaticide: Reflections on Law and Practice in England and Wales

“…Although infanticide allows for a more lenient approach, feminists have criticised this law on the ground that it medicalises the offender, explaining her crime as the product of a biologically produced mental disturbance and failing to acknowledge any social, economic, and political causes (Morris and Wilczynski, 1993). However, research into the history of this law shows that the mental disturbance rationale was based on a lay understanding of infanticide which could take account of the social and other causes of infanticide (Ward, 1999;Kramar, 2005;Kramar and Watson, 2006;Brennan, 2013b). In terms of how the law has been applied in practice, research has shown that it allows for 'covert recognition' of social causes (Morris and Wilczynski, 1993), and that it operates as a 'legal device' to facilitate lenient treatment of at least some girls and women who kill their babies at birth (Mackay, 1993, p. 29).…”