Feticide

Feticide has been deemed the act or occurrence of terminating the life of a fetus, generally with the use of force and intention of harm against the mother. Feticide is particularly deemed as such when causing the termination of the life of the fetus is accomplished unlawfully. The term further includes the act of a purposefully caused miscarriage.

When reviewing the history of feticide the primary court case referenced is Keeler v. Superior Court of Amador County. This 1970 case involved the husband of a woman who was at the time 35 weeks pregnant with a fetus not fathered by the husband. The husband assaulted his wife after verbally indicating that his intent was to rid her body of the fetus. The fetus was delivered by cesarean section, without life, and found to have a fractured skull. The husband was charged with murder by use of section 187 in California law. The California Supreme Court found that by definition this law did not apply to the unborn child, and at the time feticide was not a criminal act in that state, as a fetus was not recognized as a human being until after birth.

It was after this ruling that many states began enacting feticide laws. Initially, the primary purpose of these laws was to guard the fetus from a third party, such as in the assault involving the aforementioned case of Keeler v. Superior Court of Amador County. Feticide laws essentially provided the fetus a separate defense from the mother and rights that had not been previously afforded.

It was in the late 1980s that the purpose of the feticide laws began to shift and, instead of separating mother from fetus for the purpose of providing a separate defense, the laws began to set mother and fetus in opposition to each other. Many of these laws increased the rights of the fetus while decreasing the rights of the mother.

Many states have feticide statutes that deal specifically with feticide, while others cover unlawful fetal death under general homicide statutes. The requirements determining whether a fetal death will be deemed a feticide or a homicide vary among jurisdictions. In either case, it is the terminology chosen by each jurisdiction to define the death as unlawful that must be considered. Some states' laws do not apply to the fetus at all stages, and many laws take into consideration the viability of the fetus. Other states require that the attacker be aware that the woman was pregnant at the time of the attack. Because the variation in definition from state to state is considerable, it is necessary to view the law of each jurisdiction individually.