Statute In
England and Wales, the offence is created by section 1(1) of the
Infant Life (Preservation) Act 1929:
"Capable of being born alive" See C v S [1988] QB 135, [1987] 2 WLR 1108, [1987] 1 All ER 1230, [1987] 2 FLR 505, (1987) 17 Fam Law 269,
CA (Civ Div) In a 1991 case Brooke J said that a child is "born alive" if "after birth, it exists as a live child, that is to say breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother." As originally enacted, section 5(1) of the
Abortion Act 1967 described the Infant Life (Preservation) Act 1929 with suffix "(protecting the life of the viable foetus)". It was held that this description would not alter its effect. The defence suggestion that "viable" had a narrower meaning thus described fewer foetuses than "capable of being born alive" was rejected in 1991. By 2000, David Ormerod opines that a definition of "born alive" taken from the 1991 case is not of universal application and that an example of a case where it was not applicable was
Re A (conjoined twins), where a conjoined twin who never drew breath was considered to have been born alive. Applicability after 28 weeks' gestation has been reduced to 24 weeks.
Mode of trial Child destruction is an
indictable-only offence.
Sentence Child destruction is punishable with
imprisonment for life or for any shorter term.
Early release of prisoners Child destruction is an "excluded offence" for the purposes of section 32 of the
Criminal Justice Act 1982.
History Before 1 April 1991, section 5(1) of the Abortion Act 1967 provided that nothing in that Act affected the provisions of the Infant Life (Preservation) Act 1929. That section was substituted by section 37(4) of the
Human Fertilisation and Embryology Act 1990.
Incidence The charge of child destruction is rare. There were ten cases in the ten years to 1987. When a woman who had a
backstreet abortion while 7½ months pregnant was given a
suspended sentence of 12 months in 2007, the
Crown Prosecution Service was unaware of any similar conviction. In 2012, a woman who self-administered an abortion drug when 39 weeks pregnant was convicted of unlawful abortion under the 1861 Act. The sentencing judge remarked that she might equally have been charged with child destruction. In 2015, Kevin Wilson and an accomplice, who was under eighteen and could not be legally named, were convicted of child destruction and
grievous bodily harm after they beat and kicked Wilson's pregnant ex-girlfriend, causing fatal injuries to the foetus. == Northern Ireland ==