WAS THE CHILD BORN ALIVE ? 345
wilful act causes a child to die before it has an existence independent of its
nother, shall be guilty of the felony of child destruction, and shall be liable
o penal servitude for life, provided it is proved that the act was not done
n good faith for the purpose only of preserving the life of the mother. For
he purpose of this Act a child is assumed to be capable of being born alive
ifter a pregnancy of twenty-eight weeks or more.
The definition held by the Indian law is more correct and appropriate!
tt constitutes live-birth, even if any part of a living child has been brought!
®5rtK3 though the child may not have breathed or been completely born.\
Fhe causing of the death of such a qjjj^. is regarded as culpable homicide.2 \
The Evidence of Live-Birth,—In civil cases, the cry* the feeling, seeing\
or hearing of the heart-beat or sBgKFteuscular movements, such as twitch-4
ings of the eyelids, are sufficient to establish the proof of live-birth. It is!
said that the mere " crying " of a child, though very strong evidence of live-
birth, cannot be relied upon as positive proof, for it is possible for the child
to cry while the head is still in the uterus (vagitus uterinus), or in the vagina
(vagitus vaginalis), and to die before it is completely born. This can
happen after rupture of the membranes and is possible, if the air has passed
into the uterus or vaginal canal, and reached the child's mouth and nostrils,
Clouston 3 reports a case to which he was called out by a district nurse on November
10, 1931. The patient was in labour with her child and her previous pregnancies were
normal and without difficulty. Labour had begun at 10 the previous night and he arrived
at 8-30 in the morning to find a brow presentation, the os almost fully dilated and tihe
mother having no pains. The head was finally engaged and could not be moved. As
he was withdrawing his hand, the child began to cry. It was the normal crying of a
newly-born infant, and was heard not only by the mother, nurse and himself, but also
by a woman in the cottage in the room directly below the bedroom. This loud crying
persisted at frequent intervals for at least a minute.
Robert Watson4 describes the case of a woman, 32 years old, who, on October 25,
1932, was in labour but had made no progress. On examination he found a well-dilated
os and a breech at the brim, making no attempt to descend. The foetus seemed very big,
but the pelvis was well proportioned, so under chloroform he brought down a leg, having
to reach the fundus to get a foot. The size and plumpness of the leg gave him furiously
to thinlc, and while he was arranging things for a hard job he heard just such a muSied
cry as comes from the new-born infantf in a blanket. He whipped round, the nurse
looked startled; they both bent over the anaesthetized woman and heard noises, m>-
mistakable, familiar, from the woman's abdomen. A living male child, weighing 11
pounds and 12J ounces, was delivered later on.
Douglas,5 Curphew6 and Burton Brown7 have also recorded cases of vag^ttis
w Jjjg also possible that a child may not utter a cry and yet may be bom
aHve,iFit happens to "be immature or very delicate.
In criminal cases the Judge requires the medical witness to prove from
post-mortem examination that the child showed signs of life as a separate
existence after it had wholly or partially emerged from its mother's womb,
important sign is the establishment of respiration which can be
from examining the chest and the lungs.
ces which show whether respiration has taken place or not
l.^The shape of the chest.
position of the diaphragm.
changes in the lungs.
changes in the stomach and intestines.
2. Vide Explanation 3 of section 290, LP.C., Appendix IV. , , ,
& Brit. Med. Jour., Feb, 4, 1333, p. 200. ' «»«*.:^
4 Brit. Med. Jour-, Feb« 25, 1933, p. 341.
'5, BH£. Med. Jour., Sep. 11, 1937, p. 564.
6. BH£, Med. Jour., Sep. 27, 1^47, p. 547.
7. Brit. Med, Jonr^ Od 2% l&47y p. 672.