A fetus is an unborn child. CALCRIM 520 (California Criminal Jury Instructions)
defines a fetus as “an unborn human being that has progressed beyond
the embryonic stage after major structures have been outlined, which occurs
at seven to eight weeks of development.”
Feticide is the act of killing a fetus. Under California Penal Code Section
187(a), murder is defined as the unlawful killing of a human being or
fetus by another human being with malice aforethought. In most states,
courts have held that for the murder of a fetus to apply, the fetus must
be viable (i.e. must be at a sufficient stage of development [usually
20-22 weeks] to be able to sustain life outside the womb).
Generally, the killing must be the result of a criminal human act. Although
the act need not be the only cause of death, it must be the proximate
cause. In California, the death must occur within three years and one
day after the act that caused the injury. (See California Penal Code Section
194). Feticide does not refer to the death of a fetus due to natural causes.
Feticide is sometimes referred to as child destruction or fetal homicide.
In California, the killing of an unborn child (fetus) is murder and is
covered under Penal Code Section 187. The California Supreme Court has
ruled that knowledge of the existence of the fetus is not required to
convict of murder (People v. Taylor (2004) 32 Cal. 4th 863, 868). There is also a five year enhancement for an injury inflicted during
the commission of a felony that results in a miscarriage of a fetus (CA
Penal Code Section 12022.9).
Of course, medical abortions are excluded from both the murder and enhancement
statutes, so long as the pregnant woman consented to terminating the pregnancy.