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.

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