Concealment of Birth: Time to Repeal a 200-Year-Old “Convenient Stop-Gap”?

Abstract

Feminists have long argued that women who offend are judged by who they are, not what they do, with idealised images of femininity and motherhood used as measures of culpability. The ability to meet the expectations of motherhood and femininity are particularly difficult for women who experience a crisis pregnancy, as evident in cases where women have been convicted of concealment of birth. The offence prohibits the secret disposal of the dead body of a child, to conceal knowledge of its birth. Traditionally used to prosecute women suspected of killing their newborn children, analysis of court transcripts suggests the offence is also used to punish women who fail to meet expectations of motherhood. This paper analyses three contemporary cases in light of the historical origins of the offence, illustrating the legacy of prejudice against ‘deviant’ mothers. Finally, it questions the continued existence of this archaic offence.