‘...the law is illogical and unjust’: The Problems with the Infanticide Act 1922
On 23 February 1928, Northern Irish obstetrician and gynaecologist, Dr Anne Louise McIlroy, gave an address to members of the British Medico-Legal Society. Among the varied audience were men and women of the medical profession, barristers, judges, criminologists, psychiatrists and politicians, who collectively shared an interest in issues pertaining to law and medicine. McIlroy used her short paper, entitled ‘The Influence of Parturition Upon Insanity and Crime’, to argue that the law of infanticide was in ‘an archaic state’ and ‘require[d] further amelioration’. As a doctor who practised, taught, researched and campaigned on women’s health issues, especially the provision of maternity services and improving the experience of childbirth for mothers, McIlroy’s paper covered a subject close to her heart. Moreover, her criticism formed part of a broader chorus of voices being raised against the provisions of the Infanticide Act 1922 in inter-war Britain. In this blog, I provide a concise overview of some of the key criticisms of the Act, highlighting the divergent views within the British medico-legal community toward the law, maternal mental illness and child killing. The lack of consensus over the Act, whether it should be reformed and how this could be achieved, became a central focus of the meeting. Through this debate, historians are also offered insight into changes taking place within contemporary psychiatric thinking which called into question the long-standing acceptance by the medical profession of the existence of distinct reproductive insanities in women.
As discussed in my previous blog, the Infanticide Act 1922 established that a woman could be found guilty of the crime of infanticide if the balance of her mind was disturbed at the time of killing her ‘newly born’ child. Prior to the passage of this Act, infanticidal women were prosecuted for murder, and, if found guilty, sentenced to death.  Practically, such women were never executed. Under the new law, the crime of infanticide punished women as if they had been guilty of manslaughter, rather than murder. When the first prosecution brought under the new legislation was heard at Lincolnshire assizes, the presiding judge had been quick to laud the legislation as ‘a wise and humane piece of legislation’ that made it unnecessary ‘to put a girl on trial for murder’. Newspapers had also reported favourably on its impact, with the Aberdeen Press & Journal viewing the Infanticide Act as ‘only a single illustration of the remarkable increase in the attention which Parliament in recent years has devoted to the woman’s point of view’. The feminist periodical The Vote was less positive in its assessment of the Infanticide Act, arguing that the burden of punishment for child murder still fell disproportionately on accused women. In a retort to Justice Lush’s positive assessment of the outcome of the Emma Temple case, the article remarked, ‘We should like to know why Mr Justice Lush has nothing to say about the responsibility of the father in such a case?’ and argued that the father should also appear in court and be questioned on how he would provide for the infant.
Criticisms were heaped on the legislation from all quarters with each passing year. Judges and lawyers argued that it was unclear who had the jurisdiction to bring in a bill for infanticide and that the Act was badly drafted. Moreover, successive criminal cases problematised the once seemingly ‘humane’ provisions of the Act. Mary O’Donoghue was found guilty of the murder of her illegitimate four-week-old son following her trial on 13 October 1927. Although her capital sentence was commuted, O’Donoghue appealed her conviction on the grounds that the trial judge should have advised the jury that they had the power to return a verdict of infanticide. Following consideration by the Court of Criminal Appeal three weeks later, O’Donoghue’s appeal was quashed. Significantly, the decision seemed to establish that for a mother to be charged with the infanticide of her ‘newly born’ child, the infant could not be older than a calendar month at the time of its death. While the change in law had offered protection toward women who killed children less than a month old (and so informally defined as ‘newly born’) mothers who fatally harmed older children were still tried for murder and sentenced to death. The ‘black cap farce’ was a shorthand used in the press to describe the courtroom spectacle of sentencing such women to execution, though they would always be reprieved. The phrase also embodied disquiet with the stigma such women acquired through the public spectacle of being labelled a ‘murderess’ in the courtroom. Although the Infanticide Act had gone some way to addressing this issue, the exclusion of mothers like O’Donoghue from its provisions, drew increasing criticism throughout the 1920s and 1930s.
A little over three months since the outcome of the O’Donoghue trial, McIlroy referenced the decision in her address before the Medico-Legal Society. For her, the case threw into stark light the problematic language of the Infanticide Act, particularly the lack of clarity over what age limit should be applied to a ‘newly born’ infant, and whether it exceeded a month or even a few weeks. McIlroy also explained that ‘In medicine the definition of a newly born child is somewhat vague. Obstetricians look upon the newly born or neonatal infant as one less than ten days old. But this period is frequently extended to one month for purposes of mortality statistics and diseases.’ In addition to clarification on the term ‘newly born’, McIlroy argued that the Infanticide Act and the broader law on murder failed to offer adequate protection to mentally disturbed mothers and was thus ‘illogical and unjust’. In particular, she perceived that the existing law was more sympathetic to infanticidal women who killed their children ‘in a moment of mental anguish’ despite knowing their actions were wrong, than toward mothers who killed while suffering from diagnosed puerperal insanity and who were consequently tarnished with the label of murderess through a verdict that adjudged them ‘Guilty but insane’. McIlroy also asserted that mothers who killed their children while labouring under puerperal or other forms of reproductive insanity, needed to be marked out as a special group of offender and treated differently by the criminal law, for:
Motherhood is a necessity for the race. It is the factor of motherhood that makes the woman insane and causes her when suffering from a disease due to motherhood to destroy her offspring. There is a marked difference between a murder committed by a person suffering from general paralysis or even paranoia, and one committed by a mother in the delirium of childbirth or exhausted by nursing.
Influenced by eugenic thinking, concerns over citizenship and the fitness of the inter-war population, McIlroy reminded her audience that motherhood was not simply a private, domestic activity, but was instead central to the agenda and future success of the British state. After all: ‘Motherhood is a sacred and patriotic service, and no woman should run the risk of being branded as a murderess because she happens to fall a victim to one of the diseases incident to pregnancy.’
McIlroy’s address sparked a varied response, including some hostile reactions.
For those in sympathy, like Justice Travers Humphreys, the 1922 Act was problematic in failing to offer a definition of the term ‘newly born’. Moreover, its existence would have been unnecessary he argued, were it not for the spectre of the ‘black cap farce’ that left ‘a judge assuming the black cap and sentencing to death a person who, as he and everyone else knew, was not in the l[e]ast danger of being hanged and who would probably be released in a few weeks.’ Doctor F. J. McCann suggested that ideally the Act should only apply to those who killed neonates (children less than 24 hours old), as the existing provisions of the insanity defence could be deployed for women accused of the murder of older children while mentally unsound. Another doctor, M. I. Finucane disagreed. He had given expert evidence in a recent criminal case and felt that the Act should extend to women who killed during the puerperium, six weeks after birth. This time limit, Finucane argued, would encompass not only the physical and psychological changes associated with delivery, but also cover the broader period in which women were at higher risk of suffering from a disturbed mental state. While for Lord Baron Riddell, former solicitor and director of the popular and sensationalist Sunday paper News of the World, the problematic verdict of ‘Guilty, but insane’ should be avoided altogether when mothers killed while mentally unstable and be replaced with a verdict of ‘Infanticide’.
Psychiatrists and criminologists, like Hubert Bond and William Norwood East, had more profound problems with McIlroy’s assertions and the existing Act. For Bond, whose experience as an asylum medical superintendent put him in proximity with the mentally ill, dominant psychiatric thinking found little evidence to suggest that disorders linked to pregnancy and reproduction – such as puerperal or lactational insanity – were discrete psychiatric illnesses at all. While conceding that mental illness may emerge at times of physical and psychological crisis in the reproductive lives of many women, Bond could not sustain the view that such insanities existed distinctly in their own right, remarking: ‘there is no mental disorder (psychosis) which, by its mental symptoms and in the absence of knowledge otherwise gained can be recognized and diagnosed as due to childbearing.’ Norwood East, whose research focused on criminality and mental illness amongst men, went further still. East challenged the perceived exceptionalism of child killing as a gendered offence that required distinctive treatment of women under law, noting that:
Fatherhood equally with motherhood was a necessity for the race, and fathers were sometimes tried for killing their children and found insane. One of the contributing factors in such a case was the stress of providing for their families, and it would be difficult for juries to draw a distinction between motherhood and fatherhood.
McIlroy’s address to the Medico-Legal society was certainly not the first, nor would it be the last attempt of a medical practitioner to publicly deliberate on the administration and future of the Infanticide Act 1922. The debate that followed her address, highlights both the lack of consensus within the medico-legal community over the existence of distinct forms of reproductive insanity and the wider issue of whether women who killed their children should be treated differently under the law. In a period in which a new generation of British psychiatrists were calling into question the old Victorian diagnoses of puerperal insanity and allied conditions, the record of the Medico-Legal society meeting in February 1928, captures a moment of tension and change in the history of psychiatry, as well as from within the medical profession itself. The divergent views the medico-legal community expressed toward maternal child killing and the role mental illness may (or may not) have occupied in these cases, partly explains why reform of the Infanticide Act was so slow in coming. Another decade would pass after McIlroy gave her contentious paper before the law would finally be repealed and replaced by the Infanticide Act 1938, which is still on the statute books today.
 A. Louise McIlroy, 'The Influence of Parturition Upon Insanity and Crime', Transactions of the Medico-Legal Society, vol. 22 (1927-1928), p. 53.  Ibid., p.61.  Infanticide Act 1922, c. 18.  'Laws "For Women"', Aberdeen Press & Journal, 2 November 1922, p. 4.  'New Infanticide Act', The Vote, 3 November 1922, p. 4.  See for example: 'The Infanticide Act: Recorder On A "Badly Drafted" Measure', Gloucester Journal, 17 January 1925, p. 9; 'Murder Charge in Gloucestershire: Baby's Body In A Box', Cheltenham Chronicle, 23 May 1925, p. 6; 'Killing Newly Born Children. Judge and Grand Jury. Women Wrongly Accused of Infanticide', Portsmouth Evening News, 29 October 1929, p. 9.  See for example: 'What Is A "Newly Born" Child? Point Argued in Court of Criminal Appeal', Gloucester Citizen, 7 November 1927, p. 6.  McIlroy, 'The Influence of Parturition Upon Insanity and Crime', p. 56.  Ibid.  Ibid., p.58.  Ibid., pp.57-58.  Ibid., p.61.  Ibid., p.59. For an exploration of the provision of maternity services in twentieth century Britain and the emphasis on the needs of the state, see: Fabiola Creed and Hilary Marland, 'Improving Maternity Care through Women’s Voices: The Women’s Health Strategy Continues a Long Process of Advocacy', History & Policy, 15 February 2023, <https://www.historyandpolicy.org/policy-papers/papers/improving-maternity-care-through-womens-voices-the-womens-health-strategy-continues-a-long-process-of-advocacy>,(accessed 25 April 2023).  Ibid., p.63.  Mr Justice Humphreys, quoted in ibid.  Ibid., pp.68-69.  Dr M. I. Finucane quoted in ibid., p.70.  Ibid.  Dr Hubert Bond quoted in ibid., p.64.  Norwood East quoted in ibid., p.72.