Killing of a Newborn Child by the Mother Under Childbirth and Postpartum Stress

📘 GENERAL CHARACTERISTICS

Article 100 of the Criminal Code of the Republic of Kazakhstan establishes a special type of homicide associated with specific biopsychological and social conditions in which a woman finds herself after childbirth.

🔹 The main purpose of the article is to humanize criminal liability, taking into account:

· the peculiarities of the woman’s psychophysiological condition;

· psychologically traumatic circumstances;

· childbirth and postpartum stress.

📑 ELEMENTS OF THE OFFENSE

🔸 Object:

· principal object: the life of the newborn;

· additional object: motherhood and protection of the family.

🔸 Objective aspect:

· an act or omission resulting in the death of a newborn child;

· time of commission: during childbirth or immediately thereafter (usually within the first hours and at most several days).

📎 Not only the physiological, but also the social novelty of the mother’s status is taken into account.

🔸 Subjective aspect:

· intentional form of guilt (direct or indirect intent);

· a state of mental disorder not excluding criminal responsibility.

📌 The woman must be aware of her actions, but be under the influence of strong emotional or physiological distress.

🔸 Subject:

· only the mother of the newborn (special subject);

· a sane person who has reached the age of criminal responsibility (14 years under the general rule, but more often 16 years, taking into account Article 15 of the Criminal Code of the Republic of Kazakhstan).

⚖️ SPECIAL CONDITIONS FOR APPLICATION

The key elements for the application of Article 100 of the Criminal Code of the Republic of Kazakhstan are:

1. 🔹 Age of the victim — newborn child → there are no uniform time limits, but in practice — up to 7 days of life.
2. 🔹 Psychologically traumatic situation → difficult childbirth, social isolation, fear of condemnation, poverty, the child’s father refusing the child, etc.
3. 🔹 Mental disorder not excluding criminal responsibility → postpartum depression, acute stress, psychotic state — confirmed by a psychiatric examination.

📎 If the mental disorder excludes criminal responsibility — Articles 91–96 of the Criminal Code of the Republic of Kazakhstan apply (compulsory medical measures).

⚖️ JUDICIAL PRACTICE

Case No. 1-127/2022, Uralsk

A young woman gave birth in a dormitory without medical assistance and, being frightened, strangled the infant.

Expert examination: postpartum depression and a psychologically traumatic condition.

She was found guilty under Article 100 of the Criminal Code of the Republic of Kazakhstan.

Sentence: 3 years of restriction of liberty with probationary supervision.

Case No. 1-317/2021, Almaty

A woman from a socially vulnerable group (single-parent family, unemployed) threw away her newborn after giving birth.

Her admission of guilt, sincere remorse, and the absence of the victim’s opinion were taken into account.

Sentence: 2 years of imprisonment suspended conditionally.

📚 RELATED PROVISIONS

· Article 99 of the Criminal Code of the Republic of Kazakhstan — ordinary homicide (applies where the conditions of Article 100 are absent);

· Articles 91–96 of the Criminal Code of the Republic of Kazakhstan — compulsory medical measures;

· Article 53 of the Criminal Code of the Republic of Kazakhstan — mitigating circumstances;

· Article 15 of the Constitution of the Republic of Kazakhstan — right to life;

· Code of Administrative Offenses and the Code of the Republic of Kazakhstan on Marriage (Matrimony) and Family — issues of childbirth, social security and obstetric care.

🌍 INTERNATIONAL STANDARDS

· World Health Organization (WHO): → postpartum depression affects up to 20% of women within 6 weeks after childbirth; → it may be accompanied by severe behavioral disorders.

· Legal approaches in foreign countries:

o 🇫🇷 France — similar humanitarian qualification;

o 🇩🇪 Germany — Article 217 of the Criminal Code of Germany recognizes reduced criminal liability;

o 🇷🇺 Russian Federation — Article 106 of the Criminal Code provides for a similar provision (up to 5 years of imprisonment).

✅ CONCLUSION

Article 100 of the Criminal Code of the Republic of Kazakhstan is a humanitarian provision aimed at taking into account the social vulnerability of a woman during childbirth and her psycho-emotional state.

🔹 Its application requires:

· a mandatory psychiatric examination;

· a comprehensive analysis of the circumstances (medical, social and psychological);

· strict individualization of the sentence.

📌 Criminal punishment should be applied only as a last resort, while restriction of liberty or a suspended sentence is more frequently applied, particularly where there is remorse and a mental disorder.

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