What does the law say about mothers who abandon their babies?

We briefly unpack the complex issues that are taken into consideration when criminal charges are laid.

November 8, 2022

Emily Wellman Bain 3 minutes read

Baby Masana is seen at just a few days old in a place of safety.

The paper can confirm that Faith has undergone a DNA test to confirm that she is baby Masana’s mother and which is generally processed quite quickly in these situations, depending on what laboratory is used.

Following her first appearance in the Johannesburg Magistrate’s Court, Faith has been incarcerated and remains in prison while investigations are carried out to assess various issues which will determine if she is granted bail at her next appearance.

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Everyone who has met Masana says she is a happy and content little girl, despite the tragic circumstances of her birth.

Baby Savers SA advocate for the legalising of safe baby relinquishment options for mothers known as Baby Saver boxes. These are often in walls of institutions of care where mothers can anonymously and safely place their infant in a box which will alert care workers who can immediately come and retrieve the infant.

Co-founder of Baby Savers SA Dr Whitney Rosenberg advocates for the legalising of safe baby relinquishment options for mothers.

Co-founder Dr Whitney Rosenberg said, “Generally, criminal matters can last from a few months to a few years depending on the particulars of each case. Investigations will need to be conducted to try and determine the state of mind of the mother when she committed the crime.”

ALSO READ: Baby Savers SA hopes to change the narrative on baby abandonment

‘Baby Masana’ being held by Sophiatown police member and head of the Social Crime Prevention desk, Sergeant Masana Rikhotso who named the little girl with her name which means ‘the warmth of the sun on a winter’s morning’.

Bail may be granted if the accused is not deemed to be a flight risk and the amount charged is simply a means to get the person back to court by imposing an amount that the accused can ill afford to lose which assures their presence back at court. This is why amounts are usually expensive, and is not to be confused with punishment.

Baby Masana’s mother soon realised that she had made a terrible mistake and turned herself in at the Sophiatown Police Station, ready to accept the consequences of her actions while also hoping to find a way to be reunited with her baby. Photo: Emily Wellman Bain

The laws that govern the criminal act of baby abandonment are not always easy to decipher due to the complex nature of each individual case. For instance, was a baby abandoned in a pit latrine, or as in this situation, carefully placed somewhere reasonably safe while her mother called for help to try and ensure her baby was safe.

Below we outline some of the possibilities *Faith might face but until her case is heard, these are conjecture.

Baby Masana in a hospital garment after she was treated for dehydration.

Sophiatown Police Station spokesperson Captain TJ de Bruyn said, “Sentence of a mother if found guilty is hard to say as there are so many circumstances that need to be taken into consideration. We can’t even begin to guess what that might be.”

He explained that there are normally four charges that are applicable in court that speak to this issue.

Firstly, abandonment of a baby as is the case when Faith appeared in court last week.
Secondly, murder if a baby is believed to have been born alive and died as a result of the abandonment, if placed somewhere dangerous like in a pit latrine or rubbish dump.
Attempted murder is a possibility if the mother failed to kill her infant.
Lastly, concealment of a birth, which is usually the charge if a baby is found deceased, but believed to have been a stillborn birth, meaning it was already dead when the mother delivers. In these cases, the body is discarded in a rubbish bin, river or somewhere like that.

Some of the issues the court will take into consideration:

What was the mother’s state of mind when the incident took place?
Was she depressed during the pregnancy which spiralled after birth?
Is psychiatric care appropriate?
Inquiries will be made into her family situation – does she have relatives who could care for the baby?
Inquires will be made to locate the father. If found, he may be compelled to undergo a paternity test. His family situation will then also be looked into.
There are some provisions for the baby to be placed with the mother in prison under certain circumstances such as her ability to care for the infant.

Sophiatown Police Station member and head of the Social Crime Prevention desk, Sergeant Masana Rikhotso had the priviledge of naming the abandoned baby after spending many hours with her.

Whichever way this plays out in terms of bail and in the courts, the baby will not be handed back to the mother unless authorities are sure it will be safe.

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Rosenberg said, “If a mother is found to be in the country illegally, she is likely to be deported. If she is imprisoned, she could be sent to her home country to serve her sentence. The baby could be deported too which is why attempts will be made to locate the father to determine his nationality.”