California’s fetal homicide law treats the killing of a fetus by another person as murder under Penal Code Section 187, which defines murder as the unlawful killing of a human being or a fetus with malice aforethought. The fetus does not need to be viable, and the person charged does not need to have known the victim was pregnant. Because the Legislature never added “fetus” to the manslaughter statute, the charge for an unlawful fetal killing is murder or no homicide at all.
How the Statute Defines the Crime
The current law exists because the Legislature wanted to overturn a 1970 ruling. In Keeler v. Superior Court, the California Supreme Court held that a man who attacked his pregnant ex-wife and killed her viable fetus could not be charged with murder, because a fetus was not a “human being” under the statute as written.1Justia. Keeler v. Superior Court The Legislature responded by amending Section 187 to add “or a fetus” to the definition of murder.2Justia Law. California Penal Code 187-199 Those three words created a standalone homicide offense for the death of an unborn child caused by a third party.
The Developmental Threshold
In People v. Davis, the California Supreme Court held that a fetal murder charge requires proof the fetus had developed beyond the embryonic stage, which generally occurs seven to eight weeks after fertilization.3Justia. People v. Davis Viability is not required. A fetus that could not survive outside the womb is still covered, provided it had progressed past that early embryonic period. Whether the fetus reached that threshold is a question of fact for the jury.
No Knowledge of Pregnancy Required
The person charged does not need to have known the victim was pregnant. If the underlying act was committed with the required malice and it caused the fetus’s death, it is treated as an independent homicide. A single violent attack on a pregnant person can therefore produce two separate murder charges: one for the victim, one for the fetus.
Who Cannot Be Charged
Section 187(b) carves out three categories of conduct that cannot be prosecuted as fetal murder, even when they end a pregnancy.
Lawful Abortions
The statute exempts any act that complied with the Therapeutic Abortion Act, which governs lawful abortions performed by licensed medical professionals.2Justia Law. California Penal Code 187-199 California separately protects abortion through the Reproductive Privacy Act, which prevents the state from interfering with a person’s right to obtain an abortion before viability or when the abortion is necessary to protect the pregnant person’s life or health.4Justia Law. California Health and Safety Code 123460-123468 – Reproductive Privacy Act
Medical Necessity
A licensed physician who performs a procedure resulting in fetal death to save the pregnant person’s life is exempt. The exemption applies where childbirth would result in the pregnant person’s death to a medical certainty, or where death from childbirth would be substantially certain or more likely than not.2Justia Law. California Penal Code 187-199
Acts by the Pregnant Person
The pregnant person cannot be prosecuted for the death of their own fetus. The statute excludes any act or omission by the person carrying the fetus, along with any act the pregnant person solicited, aided, or consented to.5California Legislative Information. California Penal Code 187 – Murder That protection covers a miscarriage or stillbirth resulting from the pregnant person’s own conduct, including drug use. The Legislature has repeatedly rejected proposals to extend criminal liability to pregnant individuals for pregnancy loss.
Why There Is No Fetal Manslaughter
When the Legislature added “fetus” to the murder statute, it made no matching change to Section 192, which still defines manslaughter as the unlawful killing of a “human being” without malice.6California Legislative Information. California Code PEN 192 – Manslaughter Courts have read that omission as deliberate. The California Department of Justice has stated flatly: “There is no crime in California of manslaughter of a fetus.”7California Department of Justice. Legal Alert – Penal Code 187 and the Unlawful Killing of a Fetus
The practical result is stark. If a person kills a fetus through criminal negligence or in the heat of passion, no homicide charge for the fetal death is available. The charge is murder or nothing. A prosecutor who cannot prove malice aforethought has no lesser homicide fallback. The defendant may still face assault or battery charges for the attack on the pregnant person, but the fetal death itself goes uncharged as a homicide.
Prison Sentences
Fetal homicide is prosecuted as murder, so it carries the same sentencing framework as any other murder conviction. The degree depends on whether the killing was premeditated.
First-Degree Murder
A willful, deliberate, and premeditated killing is first-degree murder under Section 189, as is a killing committed by poison, lying in wait, or torture, or one committed during specified felonies such as robbery, arson, or kidnapping.8California Legislative Information. California Penal Code 189 The sentence is 25 years to life in state prison.9California Legislative Information. California Penal Code 190 If the prosecution charges and proves special circumstances under Section 190.2, the sentence rises to life without the possibility of parole. The statute also authorizes the death penalty, but Governor Newsom imposed a moratorium on executions in 2019, and none has been carried out since.10California Department of Corrections and Rehabilitation. California Capital Punishment
Second-Degree Murder
A killing with malice but without premeditation is second-degree murder. The standard sentence is 15 years to life in state prison.9California Legislative Information. California Penal Code 190 Enhanced penalties apply in specific situations; where the victim was a peace officer killed in the line of duty, the sentence rises to 25 years to life, and under certain aggravating factors it can reach life without parole.
Three Strikes
Both first-degree and second-degree murder qualify as strikes under California’s Three Strikes law. A second strike doubles the sentence for a new felony conviction, and a third strike carries 25 years to life regardless of the new offense.
Enhancements That Add Years
Pregnancy-Termination Enhancement
Penal Code Section 12022.9 adds a consecutive five-year sentence when someone causes the termination of a pregnancy during the commission of a felony. The enhancement requires proof that the defendant knew or reasonably should have known the victim was pregnant, acted with intent to inflict injury, acted without the pregnant person’s consent, and personally inflicted the injury that ended the pregnancy.11California Legislative Information. California Penal Code 12022.9 Note the knowledge requirement here, which the murder charge itself does not have.
Firearm Enhancements
When a firearm is used, Section 12022.53 can add substantial time on top of the murder sentence:
- Personally using a firearm: 10 additional years
- Personally discharging a firearm: 20 additional years
- Discharging a firearm causing great bodily injury or death: 25 years to life
These enhancements run consecutively to the underlying sentence.12California Legislative Information. California Penal Code 12022.53 A fetal murder committed with a firearm that caused death could carry 25 years to life for the murder plus a consecutive 25 years to life for the enhancement.
Civil Claims After a Fetal Death
The criminal case is separate from any civil action the family might pursue. California’s wrongful death statute limits standing to claims arising from “the death of a person,” and courts have generally read that language to exclude a fetus never born alive.13California Legislative Information. Code of Civil Procedure 377.60 – Wrongful Death When wrongful death is unavailable, parents may still seek compensation through other theories: negligent infliction of emotional distress, medical malpractice if a provider’s error caused the loss, product liability, or personal injury claims tied to the underlying attack or accident. Non-economic damages for grief, psychological distress, and loss of companionship are recoverable in those cases.
Victim Compensation
Families may also qualify for help through the California Victim Compensation Board. CalVCB covers crime victims and “derivative victims,” defined as individuals with a close relationship to a direct victim who incur expenses because of that person’s injury or death. Eligible derivative victims include spouses, parents, siblings, and domestic partners.14California Victim Compensation Board. Who Is Eligible Applications must be filed within seven years of the crime. The board pays qualifying expenses including funeral and burial costs up to $12,818 after other payment sources have been applied.15California Victim Compensation Board. Funeral and Burial Service Providers