Vehicular Homicide Laws and the Unborn Child

A driver who causes the death of another "person" through the use of his or car can be charged and prosecuted for the crime of vehicular homicide, which means the killing of a person with a vehicle. But, what happens when it is a fetus, or an unborn child, that is killed?

The states vary in their treatment of the killing of unborn children. In some states, there is no criminal liability for the death of an unborn child because the child is not considered to be a "person," within the meaning of the law, that is, it is not "alive" or "viable" at the time of the death.

In some states, however, an unborn child can be considered a "person" for purposes of a state's vehicular homicide law. For example, some state laws covering negligent homicide and first- and second-degree murder (different types of offenses for the killing of another person) specifically include the death of an unborn child who is "in the womb at any stage of its development."

In other states, the laws base criminal liability for the death of a fetus upon certain factors, such as "viability." In such states, an unborn child is not a "person" if it is not "viable," that is, able to remain alive outside of the womb. "Viability," in turn, usually is based upon:

• A specific amount of time during which the fetus has remained in the womb, and/or
• Medical evidence or proof of the stage of development of the fetus

For example, under a law stating that a fetus is viable when it has been in the womb for 24 weeks and medical testimony shows that it is viable, a driver who causes the death of the fetus might be charged with first-degree murder. But, under the same statute, if the fetus was not viable, the charge might be first-degree manslaughter only (a less severe crime), or, in some states, there might not be any liability at all.

Because there is no clear-cut, uniform rule that applies to this situation, it is critical that you understand the laws of your state if you are involved in the death of an unborn child.

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