Abandonment is an everyday phenomenon in South Africa, so much so that the oft-quoted statistic from 2010 that 10 babies survive abandonment every day, and two babies die for every one that survives is now woefully inadequate. But abandonment’s frequency has also numbed the media and the general public to its ongoing horror. Nevertheless, the abandonments of early 2019 were hard to ignore, more so because they had one thing in common: they all resulted in an attempted murder charge against the abandoning mother.

That may not seem noteworthy unless you know that murder and attempted murder are unusual charges related to abandonment, for reasons that have as much to do with the system as they do with the act itself. And disturbingly, equating abandonment with murder has the effect of placing the blame squarely on the abandoning mother. For some, that is a just outcome. However, the focus on abandonment as murder draws attention away from the reasons why so many women feel that abandonment is their only option, and clouds the issues, allowing authorities to abdicate their responsibility for fixing the crisis.

Just how unusual are murder and attempted murder charges in abandonment cases? In a review of 15 cases of abandonment that were covered in the media between January and April this year, nine babies died but there were only two murder charges. The police opened concealment of birth cases for the other seven. For those who survived, there were three attempted murder charges (the three high-profile cases mentioned in the introduction). The others were either deemed to be child abandonment or child neglect. So, why is murder not a common charge related to abandonment?

The first issue is a legal one. The crime of murder is defined as “the unlawful and intentional killing of another person”. But, according to South African law, a baby is not alive until it has been born and taken its first breath. The killing of a foetus, even one that is at term, and killed deliberately by an external source, is not deemed to be murder. It was a principle confirmed by a landmark case, S vs Mashumpa, in which a 38-week-old foetus was deliberately shot and killed in the mother’s womb.

The magistrate in the case noted that according to medical science the foetus had been viable since the 25^th week of pregnancy and had experienced pain during the shooting. The autopsy reports showed a pain response, an attempt to breathe evidenced by amniotic fluid and red blood cells found in the lungs in the post-mortem.

He concluded: “In medical terms, she was alive in the womb of her mother and died there as a result of the gunshot wounds to her body. Medically speaking her life and death inside the womb did not differ in nature from life and death of a normal person living in the outside world, but only in the location where that life and death occurred.” But he then went on to say that “the Constitution does not expressly confer any fundamental rights, most importantly the right to life, on an unborn child”. He, therefore, had to determine that the crime was not one of murder.

The country also does not have a foeticide rule to counteract the “born alive” principle. Even if there was, countries with foeticide laws generally use them to punish third parties for the killing of an unborn child, not the mother. The ruling confirmed that in South African law the killing of an unborn child by a third party or the mother was not murder.

The result of this law is that abandonment only becomes a potential murder if the child is born alive. Its impact is three-fold. Firstly, if a mother illegally aborts her baby in its third trimester, even up to the day of birth, there are no legal instances where she would be held liable for the murder of her unborn child. However, if the baby takes a breath and then dies, she can be. To illustrate, although it’s unknown if the mother of the baby found in the medical waste bin tried to abort him, his prematurity may have been the result of a failed late-term abortion. She now faces attempted murder charges, but no one would have prosecuted her (or anyone else) if the illegal abortion had succeeded in killing him while he was in the womb. This leads to the second impact of the killing of unborn children not being murder, which is that illegal abortion practitioners are seldom policed.

Finally, and significantly, when the police find an abandoned child who is dead, unless there are obvious external signs of murder, they generally assume that the child was stillborn and then dumped. The SAPS therefore routinely open concealment of birth inquests for dead abandoned babies rather than investigating them as murder.

Concealment of birth is a lesser charge (the maximum sentence is three years) for failing to register the birth or death of a child. And although there are probably thousands of concealment of birth inquests, it is a charge that is almost never prosecuted. According to Sheri Errington, a child-protection activist who has done an extensive study of abandonment-related deaths, there has only been one successful prosecution for concealment of birth in South Africa, and that mother was convicted of concealment of the birth as well as murder. Of course, concealment of birth charge could potentially be converted to a murder charge if an autopsy found that the baby had been born alive and had taken a breath. In practice though, a range of factors including decomposition and a backlog of cases at forensic pathology laboratories means that this seldom happens. The unfortunate upshot is that some mothers are getting away with murder.

But activists assert that most abandonments don’t constitute murder, which is what makes attempted murder charges so problematic. The key to a murder charge is intent: “the intentional killing of another human being”. Those who study abandonment argue that in most instances, abandoning mothers don’t intend to kill their babies. What makes these cases complex, however, is that although the general public understands the intention to be “deliberately aiming to do something”, the law defines it more widely to include cases where a person sees that there is a possibility of something happening, but carries on with their behaviour anyway. The legal principle is dolus eventualis, the degree of possibility that something will occur. In other words, if a mother realises the possibility of her child dying as a result of her actions, it would constitute criminal intent.

Even with dolus eventualis, the intent is still the key sticking point around abandonment cases. While authorities argue that abandoning women should have been able to see the possibility of their babies dying as a result of their actions, this isn’t always the case.

The problem with the intent argument is that it assumes agency on the part of mothers and a society that is conducive to helping them make constructive choices in the face of a crisis pregnancy. But nothing could be further from the truth. Even where abandoning women recognise that their actions could lead to the death of their child, many feel paralysed to exercise positive options.

Criminal cases against abandoning women also stumble over the issue of intent, which is why the defence in so many abandonment cases focuses on mental incapacity, specifically that abandoning mothers couldn’t appreciate the wrongfulness of their actions, or act in accordance with that appreciation. The most common form of this defence is to argue that abandoning mothers were suffering from post-partum depression. It’s a neat solution; mothers can be found guilty but with mitigating circumstances (the post-partum depression) resulting in a diminished capacity to understand the effect of their actions. Our need for justice is served, but we can also argue that the mother didn’t fully grasp the consequences of her decisions.

It’s not a new approach. In her 2013 thesis on abandonment, Dee Blackie highlighted the main public explanations for abandonment as mothers being “sad, bad, or mad”, neatly summing up society’s well-accepted argument that abandonment was related to troubled mothers. Blackie explained that child abandonment was seen as a problem falling entirely in the domain of poor women, and that although it wasn’t new social behaviour, it was increasingly being defined in medical terms, with abandoning mothers portrayed as emotionally unstable and criminally insane. The argument results in two important misconceptions. Firstly, it makes abandonment an individual challenge and therefore unresolvable at a policy level, which effectively lets everyone else off the hook. Secondly, it makes abandonment a health problem rather than a societal one.

This reinforces the message that follows every high-profile abandonment. Interestingly, it is normally the Department of Health (DOH) not the Department of Social Development (DSD) that publicly comments on abandonment. This is partly because the DSD seems to studiously avoid mentioning abandonment (perhaps because it would invite questions about how it planned to curb or end it). By contrast, the DOH habitually uses abandonment to confirm important public health messages including safe sex and avoiding teen pregnancy.

The problem with this approach is that it lacks nuance. None of the mothers who abandoned their babies in the high-profile cases in 2019 were teens. In fact, all had children already. And although depression may factor into their choices, understanding the reasons for their depression, especially feeling abandoned by the babies’ fathers and other family members, is significant. If we recognised the isolation and desperation of these mothers, we wouldn’t have lauded the father of the baby abandoned in the drainpipe for choosing to raise his daughter. We would instead have focused on the fact that he lied to the abandoning mother about being married. Similarly, in the case of the baby left in the medical waste bin, should we have applauded the grandparents who finally agreed to raise their grandson, when it was their initial refusal to help that led to their daughter’s desperation?

There is an even more important problem with the DOH’s control of abandonment messaging. Its spokespeople often encourage women to take unwanted babies to police stations or clinics or DSD offices. Not only is this erroneous, but it is particularly unhelpful because the lived experience of women exercising those options is that they get turned away by nurses and social workers who forcibly tell them to raise their babies.

In addition, abandonment of all forms is illegal in South Africa. A global 2018 conference on abandonment revealed that South Africa was the only one of 10 countries represented that didn’t have some form of legal safe abandonment. So, although there are baby savers across the country designed to facilitate safe abandonment for women who feel that abandonment is their only option, even safe abandonment is illegal. Women who abandon safely can therefore still be charged with a crime, and despite DOH messaging, women absolutely cannot “leave” their babies at government offices without fear of reprisal.

To make matters worse, the lack of policy around abandonment could put our children at greater risk. There remains a void around effective tracking and management of abandoned babies. It is the reason why babies have been known to “disappear” into communities following abandonment. This traditionally involved police officers and nurses “giving” abandoned babies to women in the community known to be childless. There are also concerns that where unregulated, baby savers allow for trafficking, which although unproven at present (those who run savers are generally well-meaning), isn’t inconceivable.

The implication of South Africa not allowing safe abandonment is that mothers who feel that they have no option other than abandonment, but whose intent is not to harm, often end up endangering their children’s lives because they have no way to abandon them safely. Even without intent, the result can be an attempted murder or murder charge. Conversely, those who intend to kill often end up getting away with murder. Equally, those who want to help save lives must do so illegally, but those who want to use the desperation of mothers as a way to traffic can do so with impunity and no accountability.

It’s an untenable situation, and given that the primary step towards solving a challenge is acknowledging that it exists, the lack of engaged direction from the DSD has meant that it appears unsolvable. But with the help of in-depth research, best practice from other countries with abandonment problems, and trial and error, child protection organisations have learnt how to end, or at least minimise, unsafe abandonment in South Africa. With a new minister at the helm of social development, maybe the department will finally add this life-saving strategy to its policy documents.

If it does, the first task would be to quantify how big the problem was, something the department has resisted, but could easily achieve by sorting Part A of the Child Protection Register to track those children who entered the system through abandonment (it has been almost three years since the deputy director-general of social welfare promised Carte Blanche that the department would action this). Then, it could use Department of Justice statistics to track the number of abandoned babies who died. In response, and based on actual figures rather than guesswork, stage two would be to put strategies and programmes in place to prevent or minimise the number of abandonments (not just safe-sex programmes, but also strategies to address patriarchy, rape, incest and sugar daddies, as well as effective options counselling).

Following the implementation of prevention programmes, stage three would be to decriminalise the act of abandonment. This would allow women to abandon safely without fear of criminal charges and conversely would only criminalise acts of unsafe abandonment. It would also enable stage four, which would be to implement safe abandonment laws, such as safe haven laws or anonymous birth.

Safe haven laws, which have been implemented in all states in America and countries such as China, allow women to place their unwanted babies in safe designated spaces such as hospitals and police stations. They would not be required to leave their names and would have no fear of reprisal or criminal charges. The other option for safe abandonment is anonymous birth, applied in countries such as France. Anonymous birth laws allow women to give birth in a hospital without leaving their name or contact details. In most instances, these details are left separately in sealed envelopes to allow the child a right to identity later in life. But the key is that there is no obligation to leave a name because these countries have determined that while roots and cultures are crucial, the right to life is more important than the right to an identity.

Decriminalising abandonment would also allow the government to begin regulating baby savers, stage five of this approach. This is an essential part of the safe abandonment programme and of formalising the process that all institutions would need to follow after a baby was safely “abandoned”.

The system will only work if those responsible for overseeing safe abandonment understand its importance and are willing to help abandoning mothers. Stage six is, therefore, to educate the officials who would be responsible for safe havens.

If we want to save lives, the final stage is to introduce a foeticide law to prosecute third parties responsible for the death of viable foetuses for reasons not covered by the Choice on Termination of Pregnancy Act. This would allow the SAPS to police the late-term illegal abortion practitioners responsible for the deaths of thousands of viable foetuses, and in many instances their mothers too.

Critically, this solution will only be effective if the government has long-term plans for all the children who survive abandonment. To save these children’s lives without facilitating their constitutional right to parental or family care would be tragic, and a commonly voiced concern by activists is that historically, the department has failed to act to stop these children from dying because it has no permanency plan for survivors.

The department’s preferred child protection strategies are family reunification, foster care, or in their absence, cluster foster care or institutional care. But, family reunification is not usually an option for abandoned children, and with the ongoing, soon to worsen crisis in foster care, and a further slowing down or even an end to adoptions (both likely consequences if the Children’s Act Amendment Bill is passed in its current form), children would be forced into institutions. Studies of children growing up in institutions reveal their significant negative impact on neurological and emotional development, and not only is this an expensive solution for government, but there also aren’t enough available places. Abandonment is, therefore, another critical motivator for the Bill to be reviewed.

Two things are clear. It’s essential that abandoning women with a proven intent to kill are charged with murder. But if we want to hold all mothers accountable for the deaths or near deaths of their children, we need to ensure that they have agency to make choices, and a system that allows them to save their baby’s life. Nor can the government hide behind individual culpability to justify its lack of intervention.

If abandonment is murder, responsibility for it must be shared. Policy changes are essential if South Africa wants to address the abandonment crisis. Now is the time for action. DM