Under California fetal homicide law, the unlawful killing of a fetus with malice aforethought is murder under Penal Code Section 187, carrying the same sentences as the murder of a born person. The fetus does not have to be viable, the attacker does not have to know about the pregnancy, and there is no lesser homicide charge available if malice cannot be proven. Three narrow exemptions apply: lawful abortion, medical necessity, and any act by or consented to by the pregnant person.
What the Statute Covers
Section 187 defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.”1Justia Law. California Penal Code 187-199 The words “or a fetus” were added by the Legislature in direct response to Keeler v. Superior Court, a 1970 decision holding 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 then a “human being” under the statute.2Justia. Keeler v. Superior Court The amendment created a standalone homicide offense for the death of an unborn child caused by a third party.
Malice can be express or implied. Express malice is a deliberate intent to kill. Implied malice covers an intentional act whose natural consequences are dangerous to life, performed with conscious disregard for that danger. A violent domestic assault that ends a pregnancy can satisfy implied malice even without any intent to harm the fetus.
Developmental Threshold
The California Supreme Court held in People v. Davis that a fetal murder charge requires proof the fetus had developed beyond the embryonic stage, generally 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 protected, so long as it has moved past that early embryonic window. Whether it did is a fact question for the jury.
Knowledge of Pregnancy Is Not an Element
The defendant does not need to have known the victim was pregnant. If the act was committed with the required malice and caused the fetal death, it is charged as an independent homicide. A single attack on a pregnant person can therefore result in two murder counts, one for the pregnant person and one for the fetus.
Causation and Time Limit
The defendant’s conduct must be a substantial factor in causing the fetal death. Deaths from natural causes or unrelated events fall outside the statute. Section 194 creates a rebuttable presumption that a death is not criminal if it occurs more than three years and one day after the injuring act.
No Fetal Manslaughter in California
When the Legislature amended Section 187, it left Section 192 alone. Manslaughter still applies only to the unlawful killing of a “human being” without malice.4California 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.”5California Department of Justice. Legal Alert – Penal Code 187 and the Unlawful Killing of a Fetus
The consequence matters. Killing a fetus through criminal negligence, or in the heat of passion, is not chargeable as any form of homicide. It is murder or nothing. If a prosecutor cannot prove malice, there is no lesser homicide charge to fall back on, though the underlying attack on the pregnant person may still support assault or battery charges.
Who Cannot Be Charged
Section 187(b) carves out three categories of conduct that cannot be prosecuted as fetal murder.
Lawful Abortion
Any act complying with the Therapeutic Abortion Act is exempt.1Justia Law. California Penal Code 187-199 California also protects abortion access through the Reproductive Privacy Act, which bars the state from interfering with the right to an abortion before viability or when needed to protect the pregnant person’s life or health.6Justia 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 reaches situations where childbirth would result in the pregnant person’s death to a medical certainty, or where such a death would be substantially certain or more likely than not.1Justia Law. California Penal Code 187-199
The Pregnant Person’s Own Acts
The pregnant person cannot be prosecuted for the loss of their own fetus. The statute excludes any act or omission by the person carrying the fetus, and any act the pregnant person solicited, aided, or consented to.7California Legislative Information. California Penal Code 187 – Murder That includes miscarriage or stillbirth linked to the pregnant person’s own conduct, drug use included. The Legislature has repeatedly rejected proposals to reach pregnant individuals for pregnancy loss.
Penalties
Because fetal killing is charged under Section 187, the sentencing framework is the same as any other murder. Degree turns on premeditation.
First-Degree Murder
A willful, deliberate, and premeditated killing is first-degree murder under Section 189, along with killings by methods such as poison, lying in wait, or torture, and killings during the commission of certain felonies including robbery, arson, and kidnapping.8California Legislative Information. California Penal Code 189 The sentence is 25 years to life.9California Legislative Information. California Penal Code 190 If special circumstances under Section 190.2 are charged and proven, the sentence rises to life without parole.
Second-Degree Murder
A killing with malice but without premeditation is second-degree murder, punishable by 15 years to life.9California Legislative Information. California Penal Code 190
Enhancement for Terminating a Pregnancy
Section 12022.9 adds a consecutive five-year enhancement when a defendant causes the termination of a pregnancy during a felony. The prosecution must show 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.10California Legislative Information. California Penal Code 12022.9 Unlike the murder charge itself, this enhancement requires knowledge of the pregnancy.
Firearm Enhancements
When a firearm is involved, Section 12022.53 adds consecutive 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
A fetal murder committed with a firearm causing death can therefore carry 25 years to life for the murder plus 25 years to life for the enhancement.11California Legislative Information. California Penal Code 12022.53
Civil Claims and Victim Compensation
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 that was never born alive.12California Legislative Information. Code of Civil Procedure 377.60 – Wrongful Death Parents may still pursue compensation through other theories, including negligent infliction of emotional distress, medical malpractice, product liability, or personal injury claims tied to the underlying attack. Non-economic damages such as grief, psychological distress, and loss of companionship are recoverable in those cases.
Families may also apply to the California Victim Compensation Board. CalVCB covers crime victims and “derivative victims,” including spouses, parents, siblings, and domestic partners with a close relationship to a direct victim.13California Victim Compensation Board. Who Is Eligible Applications must be filed within seven years of the crime, and funeral and burial costs are reimbursable up to $12,818 after other payment sources are applied.14California Victim Compensation Board. Funeral and Burial Service Providers