Abstract
As the abortion debate continues to rage in the United States, this book comes as a reminder of the ways in which English law has regulated women's reproduction and fertility and continues to do so. Judging the Failed Mother joins a growing area of feminist literature which explores, critiques and challenges the ways in which society responds to women and their decision-making during pregnancy and birth. Drawing on court transcripts to analyse the cases of 15 women who have been convicted of offences associated with the deaths of their newborns or foetuses, Milne examines the role of gendered norms in both legislation and courtroom discourse. Applying broader terminology than that suggested in the book's title, Milne uses “suspicious perinatal death” and “suspected perinatal killing” to reflect her interest in acts beyond those pertaining to homicide. Milne's terminology therefore incorporates circumstances in which a pregnant woman has caused the death of her foetus/baby between 24 weeks gestation to 24 hour post birth. Noting the breadth of offences with which women were convicted - ranging from murder, manslaughter, infanticide, administering poison with intent to procure a miscarriage, concealment of birth and child cruelty – the book is a skilful, multidisciplinary approach to a difficult topic which draws on sociology, law, feminist theory and history.
The book is split into seven chapters. The first introduces the thrust of Milne's argument. While she acknowledges the role of the criminal law in holding people responsible for individualised behaviour, Milne contends that in cases of suspicious perinatal deaths, focus should be on society and its structures. These Milne insists, are what create the situation in which a vulnerable woman experiencing a crisis pregnancy believes her only viable option is to end the life of her late term foetus or newborn. Judging the Failed Mother is therefore the culmination of Milne's interrogation of these wider social structures, and in particular the social norms underpinning how society perceives ‘good’ mothers should behave. In the same chapter Milne also introduces the idea that a woman's perceived failure to reach these social ideals plays a crucial role in her ultimate criminalisation and punishment; in essence, the criminal law serves to reinforce existing sex-based oppression and is driven by discriminatory ideas about women and their role in society.
In chapter 2, Milne contextualises the 15 cases of perinatal deaths examined in the book. Her aim with this is not to analyse the individual psychological or psychiatric circumstances of the women involved. Instead, she unpacks the academic understanding of concealed and denied pregnancies and explores the literature pertaining to the connection between crisis pregnancies and neonaticide, the latter reflecting the language used in such studies, as opposed to Milne's preferred terminology and approach. In doing so, Milne argues that there is no typical woman who commits neonaticide; rather her behaviour is a product of the environment in which she lives, her vulnerabilities, crises and situational stresses. As such, the wider context of a woman's life is what impacts how she engages with her pregnancy and her behaviour around the time of birth. In contrast however, Milne provides evidence to suggest the courts in her study failed to appreciate the realities associated with a crisis pregnancy, and perceived concealment of pregnancy as indicative of women being deceitful rather than desperate.
In chapters 3 and 4, Milne concentrates on the ways in which social norms regarding ‘good’ maternal behaviour – described as the ‘myths of motherhood’ - permeate the court transcripts and create standards against which women are judged. One such ‘myth’ raised by Milne, is the “foetus first” mentality, which requires ‘good’ mothers to put the needs of their unborn baby before their own. Milne argues that this is linked to the medicalisation of childbirth and the consequent ways in which both patriarchal, capitalist society and technocratic maternity systems regulate and surveil women's pregnancies and births. In addition, notions of risk are explored, particularly the social presumption that pregnant women pose potential risks to their unborn children. This, Milne argues, should be contextualised against the risk a foetus poses to a pregnant woman, particularly given the gendered harms mothers face in wider society such as those associated with wellbeing, employment, income and child-care responsibilities.
Chapter 5 consists of the historical evolution of criminal justice responses to suspicious perinatal deaths. Milne takes the reader through various legal developments over the last 400 years indicating that these were strongly linked to society's desire to control women's sexuality, enforce appropriate motherhood (i.e. within marriage) and uphold patrimony. Throughout this time, murder and its associated death sentence were not deemed appropriate responses to perinatal killings. Milne therefore outlines how a patchwork of offences were created as a way of punishing women for the deaths of their babies/foetuses. Such offences were rooted in philosophies regarding appropriate sexual behaviour for women and the circumstances within which pregnancy was acceptable. Worryingly, Milne is able to pinpoint examples in her analysis of contemporary cases in which these philosophies remain and played a role in the way women were presented and judged.
Within chapter 6, Milne argues convincingly that contemporary offences of concealment of birth and procuring a miscarriage not only serve to hold women to account for perceived ‘bad’ mothering but are also being used as proxies for foetal homicide laws. Of note is Milne's argument that although the offence of procuring a miscarriage relates to the ending of pregnancy, in court discourse this often drifted into language around the ending of the life of a foetus or child. This distortion inadvertently enters the realms of foetal homicide, a move Milne rightly critiques.
In the final chapter, Milne poses the question as to whether the criminal law and justice responses she has analysed are about protecting children and foetuses or whether they are about controlling women. This is a question worthy of considerable thought, and one which could be applied to other areas pertaining to women's reproductive rights, such as abortion. Milne also contemplates the vigour employed in prosecuting women who kill their newborns or foetuses. This is contrasted with the lackadaisical judicial response to other forms of killing, such as that associated with the state and deaths caused by poverty, homelessness or welfare cuts. A detailed analysis of why the responses differ goes beyond the scope of the book, but Milne nevertheless raises a noteworthy point.
Throughout the book, the implicit question is ‘how should society respond to women who cause the deaths of their foetuses or newborns?’ Milne provides some suggestions, for example, the removal of concealment of birth from the statute books and the decriminalisation of abortion. Untouched upon in the text, yet raised in my mind, was how should acts carried out by a pregnant woman, which result in the death of her foetus or newborn, be punished – if at all? Such a knotty question extends beyond socio-legal thought and is imbued with bioethical overtones pertaining to the moral status and personhood of the foetus and newborn.
In short, whilst the book's subject area may appear niche, it is situated within a much broader and timely discussion on women's reproductive rights. It contributes to a sociological understanding of ‘good’ mother ideals and how these social norms impact real women's lives. Ultimately, this is a feminist text and Milne is clearly advocating for improved social structures and better judicial understanding regarding crisis pregnancies. However, as she concedes, a general reordering of patriarchal society is not going to happen any time soon. Until then, Milne's text serves to illuminate a dark corner of society in which tragedy, sexism, vulnerability and criminalisation collide.
King’s College London