R v Poulton (1832) 5 C & P 329

Murder – Unborn foetus


A mother strangled her newborn baby, and was charged with the murder. Three medical men testified before a jury that a child can die during the delivery, thus the fact that a child breathes when it is born before it its whole body is delivered does not mean that it is born alive:

“It frequently happens that a child is born as far as the head is concerned, and breathes, but death takes place before the whole delivery is complete. My opinion in this case is, that the child had breathed; but I cannot take upon myself to say that it was wholly born alive.”


The issue in question was when a foetus becomes a ‘human being’ for the purposes of murder and manslaughter.


An unborn child is incapable of being killed. A child is born only when the whole body is brought into the world, but it is not sufficient that the child breathes in the progress of the birth, as the child may die before the whole delivery takes place. For a murder or manslaughter conviction, a child must be killed after it has been fully delivered alive from the mother’s body. In this case the jury found the child not to be born alive, and therefore the mother could not be guilty of murder. The case of A-G's Ref (No 3 of 1994) [1997] 3 WLR 421 confirmed that an unborn foetus is not capable of being murdered, but a manslaughter conviction can stand where the foetus was subsequently born alive but dies afterwards from injuries inflicted whilst in the womb.