Commentary on Article 100. Murder of a Newborn Child by the Mother under the Criminal Code of the Republic of Kazakhstan

Murder by a mother of her own newborn child, both during childbirth and in the subsequent period, committed in a psychotraumatic situation or in a state of mental disorder that does not exclude criminal responsibility —

shall be punishable by restriction of liberty for a term of up to four years or imprisonment for the same term.

The public danger of this crime is expressed in the violation of the absolute human right to life, which belongs to every person from birth.

The object of the crime is the life of the newborn child.

The objective element of the act is expressed in the murder by a mother of her own newborn child, both during childbirth and in the subsequent period, committed in a psychotraumatic situation or in a state of mental disorder that does not exclude criminal responsibility.

The right to life arises simultaneously with the commencement of physiological childbirth. The moment of a child's birth should not be considered the moment when the infant is completely extracted from the mother's body, when the newborn begins to demonstrate vital metabolic functions characteristic of an independent human organism (pulmonary respiration accompanied by the first breath and cry), but rather the moment when the first labor contractions occur in the pregnant woman, when the process of separating the fetus from the mother's body only begins. The life of the product of conception during its expulsion from the mother's body must not fall outside the scope of criminal-law protection of human life.

At the moment contractions begin, there can be no question of terminating a pregnancy (abortion), since the pregnancy itself has already been terminated by the onset of labor. In the case of normal childbirth, the completion of pregnancy indicates that the child is already potentially viable.

A person who encroaches upon a child being born realizes that they are depriving a living child, rather than an intrauterine fetus, of life. In all respects, the actual content and social significance of such a crime correspond to the characteristics of murder.

A medical professional whose overconfidence or negligence results in the death of a child being born realizes that human life, rather than the life of an intrauterine fetus, depends on their actions. Consequently, under such circumstances, their actions should be regarded as containing the elements of causing death by negligence. An additional argument supporting the correctness of our approach is the literal interpretation of the wording of Article 100 of the Criminal Code in the part stating "murder by a mother of her own newborn child, both during childbirth and in the subsequent period." Thus, the legislator confirms that the fetus acquires the status of a "newborn" not at the moment childbirth ends, but at the moment it begins. Therefore, if the actions of an obstetrician-gynecologist contain any elements of a criminal offence in a situation where they should and are able to foresee and prevent the intrauterine death of the fetus, but, as a result of overconfidence or negligence, cause its death through their actions or omissions, they must be held criminally liable under Article 104 of the Criminal Code.

A woman's condition during childbirth and immediately after childbirth exists when the act is committed at the moment physiological labor begins or during the process of separating the child from the mother's body. Under the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, "On the Qualification of Certain Criminal Offences against Human Life and Health", a psychotraumatic situation is understood as significant circumstances that negatively affect the mental state of a woman who has given birth (for example, the child's father refusing to accept the child, relatives condemning the birth of a child outside marriage, the child's father or the woman's relatives refusing to provide financial assistance for the subsistence of the mother and child, etc.).

A woman's mental disorder after the birth of a child is generally characterized by negative processes in her mental activity (depression, feelings of fear, manic moods, etc.). In order to establish whether the woman is criminally responsible or legally insane in connection with the specified disorders, a psychological and psychiatric examination must be conducted.

When qualifying an act under Article 100 of the Criminal Code, the newborn status of the child must be taken into account, as determined by a forensic medical examination in accordance with pediatric criteria. The murder of a child after the expiration of the period of newborn status cannot be qualified under Article 100 of the Criminal Code; in such cases, liability arises under Article 99 of the Criminal Code.

A psychotraumatic situation generally does not arise instantaneously but develops gradually and is associated with the accumulation of negative emotions in the mother of the newborn against the background of the negative impact of external factors on her psyche (for example, informing a woman that the child will be abnormal for certain reasons, or that the child's father has died, or providing other information containing negative details).

The mother's state of mental disorder that does not exclude criminal responsibility is a profound impairment of the mental state of the woman in labor compared with her mental condition in a psychotraumatic situation, in which she does not fully understand the nature of her actions and does not fully control them.

In law enforcement practice, there is no difficulty in determining the concept of "during childbirth", which cannot be said about determining the concept of "in the subsequent period". Criminal law scholarship has not defined what should be understood by the concept of "in the subsequent period". There is no answer to this question in judicial and investigative practice either. Meanwhile, the correct definition of this concept determines how the act committed should be qualified: as murder (Article 99 of the Criminal Code) or as murder of a newborn child by the mother (Article 100 of the Criminal Code). The existing opinion in pediatrics that a newborn should be considered a child under four weeks of age is hardly acceptable for criminal legislation. A study of judicial practice shows that, in the overwhelming majority of cases, such murders are committed on the day the child is born. This provides grounds for raising the issue of improving criminal legislation, namely, replacing the words "in the subsequent period" in the wording of Article 100 of the Criminal Code with the words "immediately after childbirth", while the Supreme Court should provide an appropriate interpretation.

The crime is deemed completed from the moment the newborn child dies.

The subjective element of this murder is characterized by an intentional form of guilt, with either direct or indirect intent. The actions of the perpetrator should be qualified under Article 100 of the Criminal Code if the person was aware of the public danger of their actions (omissions), foresaw the possibility or inevitability of socially dangerous consequences, and desired their occurrence. Likewise, the murder of a newborn child by the mother shall be recognized where the person was aware of the public danger of their actions (omissions), foresaw the possibility of socially dangerous consequences, did not desire but consciously permitted their occurrence, or treated them with indifference. Causing the death of a child through negligence under the circumstances specified in Article 100 of the Criminal Code entails criminal liability under Article 104 of the Criminal Code.

The subject of this crime is special: it may be a woman who is the mother of the newborn infant and has reached the age of 16. The murder of a newborn child by a person under the age of 16 does not constitute the elements of the specified crime, since Article 100 of the Criminal Code is a special provision in relation to Part 1 of Article 99 of the Criminal Code, containing a privileged corpus delicti.

If a woman intentionally causes the death of someone else's child, Article 100 of the Criminal Code shall not apply. If, for example, while in a psychotraumatic situation, a mother decides to kill her own child but makes a mistake because someone brings her another person's child, and she deprives that child of life, the act committed should be qualified under Article 100 of the Criminal Code. In this case, an error as to the identity of the victim occurs, which, as a general rule, does not affect the legal qualification of the act committed.

At present, the issue of complicity in the crime provided for in Article 100 of the Criminal Code is sufficiently debatable. Legally, complicity in the murder by a mother of her own newborn child is impossible. The liability of other persons acting as co-perpetrators, instigators, organizers, or accomplices in the murder of a newborn child by the mother arises under Part 3 of Article 99 of the Criminal Code, with reference to the relevant part of Article 28 of the Criminal Code, since the mitigating circumstances specified in Article 100 of the Criminal Code are associated exclusively with the identity of the perpetrator — in this case, the mother of the newborn. In a situation where the functions of an organizer, instigator, or accomplice are performed by the mother of the newborn child, while another person acts as the perpetrator of the murder, the mother's liability must arise under Article 100 of the Criminal Code regardless of the role she performs (instigator, accomplice, or organizer). I draw this conclusion based on the fact that complicity in this crime is impossible.

The murder of a newborn child by the mother through omission must be distinguished from leaving a person in danger (Article 119 of the Criminal Code) based on the direction of the perpetrator's intent. If, based on the circumstances of the case, it is established that, when leaving the newborn without assistance, the perpetrator reasonably expected that other persons would save the child's life, liability under Article 100 of the Criminal Code is excluded.

The act provided for in Article 100 of the Criminal Code belongs to the category of crimes of medium gravity.

2021 Commentary on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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