DELIBERATE MURDER OF THE MOTHER OF HER NEWBORN CHILD: QUESTIONING THE GENDER-BASED APPROACH IN CRIMINALIZATION

The article assesses compliance with the requirements of a gender-balanced approach in the criminalization of intentional homicide by the mother of her newborn child. It is emphasized that according to Art. 117 of the Criminal Code of Ukraine, the subject of a criminal offense is the mother of a newborn child. It is noted that in view of the growing interest in choosing one's own gender, the prevalence of cases of successful childbirth in transgender men, the similarity of their condition caused by the events of pregnancy and childbirth to the corresponding condition of cisgender women, Art. 117 of the Criminal Code of Ukraine requires improvement in determining the subject composition. Currently, the classification of transgender men in the category of «mother» does not ensure the fulfillment of obligations along the line of respect for the chosen identity of the named persons. Separate decisions of the ECtHR regarding the assessment of States' requirements for the formalization of gender change have been analyzed. It was concluded that the position of the Court regarding the inconsistency of Art. 8 of the European Convention on Human Rights, the authorities' requirements to prove the irreversibility of gender change is an argument in favor of maintaining the trend of childbearing by transgender men and, as a result, the need to update approaches to the characterization of subjects under Art. 117 of the Criminal Code of Ukraine. It is noted that there is already a prospect of childbirth by transgender women, which also exacerbates the problem of legislative technique in the characterization of the subject under Art. 117 of the Criminal Code of Ukraine. Particular attention is paid to the issue of responsibility for the intentional killing of their newborn child by cisgender men who committed a criminal offense in a state of strong mental excitement caused by the events of pregnancy and childbirth of the mother. It is emphasized the importance of not allowing privileges to mitigate responsibility for the behavior of persons who, although they have a social connection with a newborn child and a person whose behavior is determined by the event of pregnancy and childbirth, but who in connection with childbirth do not experience shocks of the level of a special state (brother, sister, grandfather, grandmother, etc.).