Under a bill introduced in the Texas Legislature, postpartum mental disorder would be recognized as a legal defense for women, such as Andrea Yates and Dena Schlosser, who kill their children.
If lawmakers approve the measure, Texas would be the first state to have an infanticide law, said George Parnham, the Houston attorney who defended Yates.
"It's something every civilized country has on its books," said Parnham, a strong proponent of the legislation. "The only thing that will change public attitude is education about postpartum issues."
The bill, introduced earlier this month by Rep. Jessica Farrar, D-Houston, applies to women who commit the crime within 12 months of giving birth. If jurors find a defendant guilty of murder, they can take testimony about postpartum issues into consideration during the trial's punishment phase.
If jurors believe that the woman's judgment was impaired as a result of childbirth or lactation, they can find her guilty of infanticide – a state jail felony that would carry a maximum punishment of two years in jail.
McKinney attorney David Haynes, who defended Schlosser, said Farrar's bill "recognizes the great stress that some mothers are under when they suffer from postpartum depression."
Haynes said any bill to reduce the penalty for such a crime will be highly controversial and have only a slim chance of becoming law – at least during this legislative session.
Shannon Edmonds, legislative liaison for the Texas District & County Attorneys Association, said the proposal would have to be thoroughly reviewed.
"Anytime something novel like this is proposed," he said, "it needs to be fully vetted so that legislators can make informed decisions and be sure there are no unintended consequences."
Postpartum depression is recognized as a legal defense in at least 29 nations, including Britain, which has had an infanticide law on the books since 1922.
"These countries have accepted the reality of postpartum mood disorders," said Susan Dowd Stone, chair of the President's Advisory Council for Postpartum Support International, a California-based advocacy group.
Experts estimate that 80 percent of new mothers have the "baby blues" for a week or two after giving birth, and 10 percent to 20 percent suffer depression that requires treatment.
Only one or two in 1,000 women develop postpartum psychosis that has been cited in high-profile cases like those of Schlosser, the Plano mother who killed her baby in 2004 by cutting off her arms, and Yates, the Houston mother who drowned her five children in 2001. Both women were found not guilty by reason of insanity and placed in mental-health treatment centers.
For every woman who receives treatment, there are 10 who are imprisoned for the crime, Stone said.
"These are not intentional acts," she said. "That's so hard for the public to grasp."
Postpartum psychosis is a rare condition that generally affects women with extreme sensitivity to hormonal fluctuations and a history of mental illness, Stone said.
"We do not want women who abuse children to use this defense," Stone said. "There are very clear guidelines for postpartum psychosis."
Even if the infanticide bill becomes law, however, the insanity defense would still be an option for women charged with such crimes.
"The insanity defense can be an extremely strict law as it is in Texas and other states," said Margaret Spinelli, associate professor of psychiatry at Columbia University and an expert on postpartum mental illness and infanticide. "People have to fit very specific criteria to meet it."