Foeticide

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Foeticide (British English), or feticide (North American English), is the act of killing a fetus, or causing a miscarriage. [1] Definitions differ between legal and medical applications, whereas in law, feticide frequently refers to a criminal offense, [2] in medicine the term generally refers to a part of an abortion procedure in which a provider intentionally induces fetal demise to avoid the chance of an unintended live birth, or as a standalone procedure in the case of selective reduction. [3]

Contents

Etymology

Foeticide derives from two constituent Latin roots. Foetus, meaning child, is an alternate form of fetus coming from the writings of Isidorus, who preferred oe due to its association with foveo "I cherish" as opposed to feo "I beget". [4] Foetus is compounded with the suffix -cide , from caedere , "to cut down, to kill." Also see homicide, genocide, infanticide, matricide, and regicide.

As a crime

Laws in North America

Laws in the United States

Fetal homicide laws in the United States
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Homicide or murder.
Other crime against fetus.
Depends on age of fetus.
Assaulting mother.
No law on feticide. Map of US, feticide laws.svg
Fetal homicide laws in the United States
  Homicide or murder.
  Other crime against fetus.
  Depends on age of fetus.
  Assaulting mother.
  No law on feticide.

In the U.S., most crimes of violence are covered by state law, not federal law. 38 states currently recognize the unborn child (the term usually used) or fetus as a homicide victim, and 29 of those states apply this principle throughout the period of pre-natal development. [5] These laws do not apply to legally induced abortions. Federal and state courts have consistently held that these laws do not contradict the U.S. Supreme Court's rulings on abortion.

In 2004, Congress enacted, and President Bush signed, the Unborn Victims of Violence Act, which recognizes the "child in utero" as a legal victim if he or she is injured or killed during the commission of any of the 68 existing federal crimes of violence. These crimes include some acts that are federal crimes no matter where they occur (e.g., certain acts of terrorism), crimes in federal jurisdictions, crimes within the military system, crimes involving certain federal officials, and other special cases. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb." This federal law (as well as many similar state laws, such as the one in California), does not require any proof that the person charged with the crime actually knew the woman was pregnant when the crime was committed. [6]

Of the 38 [5] [7] states that recognize fetal homicide, approximately two-thirds apply the principle throughout the period of pre-natal development, while one-third establish protection at some later stage, which varies from state to state. For example, California treats the killing of a fetus as homicide, but does not treat the killing of an embryo (prior to approximately eight weeks) as homicide, by construction of the California Supreme Court. [8] Some other states do not consider the killing of a fetus to be homicide until the fetus has reached quickening or viability. [9]

In states where the overturning of Roe v. Wade has resulted in the complete illegalization of abortion except to preserve the life of the carrier, such laws may be used to prosecute any such procedure resulting in fetal demise. [10]

Fetal homicide laws have also been used to prosecute women for recklessly causing stillbirths, such as in the cases of Rennie Gibbs, Bei Bei Shuai, and Purvi Patel. Gibbs was charged with murder in Mississippi in 2006 for having a stillborn daughter while addicted to cocaine. Gibbs is the first woman in Mississippi to be charged with murder relating to the loss of her unborn baby. [7] The judge in that case ruled that the charges be dismissed. [11] In 2011 Shuai was charged by Indiana authorities with murder and foeticide after her suicide attempt resulted in the death of the child she was pregnant with. Shuai's case was the first in the history of Indiana in which a woman was prosecuted for murder for a suicide attempt while pregnant. [12] In 2013 Shuai pleaded guilty to a misdemeanor charge of criminal recklessness and was released, having been sentenced to time served. In 2015 Purvi Patel became the first woman in the United States to be charged, convicted, and sentenced on a foeticide charge. [13] However, her conviction was later overturned, and she was resentenced to time served for a lesser charge. [14]

Laws in Canada

Feticide is not considered a crime in Canada, as the Revised Statutes of Canada does not define a fetus as a person until it has either (1) taken a breath, (2) had independent circulation, or (3) had its umbilical cord severed. [15] However, if the feticide occurs in the process of birth, it is a criminal offense. [16]

Laws in the Central America

Laws in Belize

In Belizean Law, Feticide is a crime, although the prosecution and exact legality of such a such an action is difficult to conclusively ascertain, as legal experts disagree on how the law, and its requirement for Mens rea should be applied. [17]

Laws in Costa Rica

In Costa Rican law, feticide exists as a crime, but it does not stand equivalent to homicide, nor does it result in similar penalties. [18]

Laws in El Salvador

In Salvadoran law, any act which results in the death of a fetus is heavily criminalized. [18] This has resulted in numerous women being charged and convicted for miscarriages, as was the case with Evelyn Beatriz Hernandez Cruz, [19] María Teres, and others. [20]

Laws in Guatemala

In Guatemalan law, anyone who, during "acts of violence" causes on abortion "when the pregnant state of the victim is evident" has committed what the law calls an unintended abortion, and faces penalties up of up to three years imprisonment. [21]

Laws in Honduras

In Honduran law, causing the death of a fetus where the mother is visibly pregnant is known legally as feticide. [18] [22]

Laws in Nicaragua

In Nicaraguan law, feticide is known legally as Reckless Abortion, and the law specifies that whoever causes "abortion through recklessness" is guilty of the offense and shall face six months to one year in prison. [23]

Laws in the Caribbean

Laws in Bahamas

In Bahaman Law, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage). [24] In cases tried both recently and historically the murder of pregnant women, even when the women was obviously pregnant, resulted in no greater penalty for the destruction of the fetus. [25]

Laws in Jamaica

In Jamaican law, feticide is not a crime. [26] In recent history there have however been repeated calls for this to change. [27]

Laws in Haiti

In Haitian law, feticide is a crime. [18] Under Section 2, Article 262 of the Penal Code of Haiti, "Anyone who, by means of food, drink, medicine, violence or any other means, procures the abortion of a pregnant woman, whether she has consented to it or not, will be punished by imprisonment." [28]

Laws in The Dominican Republic

In Dominican law, feticide is a crime. [18] Under Article 317 of the Criminal Code of the Dominican Republic, "Whoever, by means of food, medicines, medicines, probes, treatments or in any other way, causes or directly cooperates to cause the abortion of a pregnant woman, even if she consents to it, shall be punished with the penalty of minor imprisonment." [29]

Laws in St. Kitts and Nevis, Antigua and Barbuda, and Dominica

In the countries listed above, English Common Law remains the law of the land, and as such, feticide is prohibited by a combination of two acts, the first, the Offences Against the Person Act, makes feticide a crime, but only when the act that induced it was itself intended "to procure... (a) miscarriage", defining the act as an abortion. The second act on the subject, the Infant Life (Preservation) Act further outlines a separate crime, child destruction, which occurs when a person with "intent to destroy the life of a child capable of being born alive" takes an action which, "causes a child to die before it has an existence independent of its mother". The act goes on to specify that any fetus which has gestated for 28 weeks or more is to be considered capable of being born alive. [30] [31] [32]

Laws in St. Lucia

In St. Lucia, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage). The crime, known as "causing a termination of a pregnancy" occurs when someone causes the pregnant person to "be prematurely delivered of a child" but only if they also have "intent unlawfully to cause or hasten the death of the child" [33]

Laws in St. Vincent and the Grenadines

In St. Vincent and the Grenadines, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage). The crime, which is known simply as abortion occurs when someone "unlawfully administers to her (a pregnant person), or causes her to take, any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever" but only if they also have "intent to procure the miscarriage of a woman". [34]

Laws in Barbados

In Barbados, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage) or, when the pregnant person "is about to be delivered of a child". The crime for intentionally inducing a miscarriage, which is known as "Administering drugs or using instruments to procure abortion" occurs when someone "with intent to procure the miscarriage of any woman,... unlawfully administers to her or causes to be taken by her any poison or other noxious thing or unlawfully uses any instrument or other means whatsoever". The crime for feticide where the pregnant person "is about to be delivered of a child", is defined as "Killing an unborn child" and occurs when a person "prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child" [35]

Laws in Grenada

In Grenada, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage). The crime is known simply as causing abortion, and is committed when someone takes an action "causing a woman to be prematurely delivered of a child, with intent unlawfully to cause or hasten the death of the child." [36]

Laws in Trinidad and Tobago

In Trinidad and Tobago, feticide is only a crime if fetal demise was the intent of the act (for example, if a perpetrator performed an abortion, or assaulted a pregnant person with the explicit intent of inducing a miscarriage). The crime, which is known simply as abortion occurs when someone "unlawfully administers to her or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent" but only if they also have "intent to procure a miscarriage". [37]

Laws in Europe

Laws in the United Kingdom

In English law, "child destruction" is the crime of killing a fetus "capable of being born alive", before it has "a separate existence". [38] The Crimes Act 1958 defined "capable of being born alive" as 28 weeks' gestation, later reduced to 24 weeks. [38] The 1990 Amendment to the Abortion Act 1967 means a medical practitioner cannot be guilty of the crime. [38]

The charge of child destruction is rare. [39] A woman who had an unsafe abortion while 7½ months pregnant was given a suspended sentence of 12 months in 2007; [40] the Crown Prosecution Service was unaware of any similar conviction. [39]

Laws in Asia

Laws in India

In Indian Law, feticide is considered a form of "culpable homicide". Section 316 of the Indian Penal Code defines the crime as "an act (that) cause(s) the death of a quick unborn child", but only applies when it occurs as an effect of another crime which would cause death, such as the murder of the mother. [41]

In the case of sex-selective abortion, the Pre-Conception and Pre-Natal Diagnostic Techniques Act prohibits the act, although there is question as to the degree of enforcement, as the ratio of male to female live births continue to be misaligned with the international average. [42]

As a medical practice

A sign in an Indian hospital stating that prenatal sex determination is a crime. The concern is that it will lead to female foeticide. Sex determination ban.JPG
A sign in an Indian hospital stating that prenatal sex determination is a crime. The concern is that it will lead to female foeticide.

In medical use, the word "foeticide" is used simply to mean the induction of fetal demise, either as a precursor to a further abortion procedure, or as a primary abortive method during selective reduction due to fetal abnormality or multiples. The Royal College of Obstetricians and Gynaecologists recommends foeticide be performed "before medical abortion after 21 weeks and 6 days of gestation to ensure that there is no risk of a live birth". [43] In abortions after 20 weeks, an injection of digoxin or potassium chloride into the fetal heart to stop the fetal heart can be used to achieve foeticide. [44] [45] [46] [47] [48] In the United States, the Supreme Court has ruled that a legal ban on intact dilation and extraction procedures does not apply if foeticide is completed before surgery starts. [48]

Historically, a multitude of methods both mechanical and pharmaceutical were used to induce fetal demise. These included intrafetal injection with meperidine and xylocaine, [49] injection of lidocaine into the umbilical vain, [50] intracardiac calcium gluconate [51] or fibrin adhesive [52] injection, umbilical occlusion by way of alcohol or embucrilate gel injection, [53] umbilical cord ligation, intraarterial coil placement, and cardiac puncture. [54] These methods are rarely if ever used in modern practice, as both digoxin and potassium chloride have better, and more reliable outcomes.

Injecting potassium chloride into the heart of a fetus causes immediate asystole, but depending on the method used, digoxin may fail to induce fetal demise in some cases (up to 5% if injected into the fetus and up to a third if injected into the amniotic sac) [55] even though it is the preferred drug in many clinics. Digoxin is preferred because it is technically difficult to inject KCl into the heart or umbilical cord. [56]

The most common method of selective reduction—a procedure to reduce the number of fetuses in a multifetus pregnancy—is foeticide via a chemical injection into the selected fetus or fetuses. The reduction procedure is usually performed during the first trimester of pregnancy. [57] It often follows detection of a congenital defect in the selected fetus or fetuses, but can also reduce the risks of carrying more than three fetuses to term. [58]

See also

Related Research Articles

Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of all pregnancies. When deliberate steps are taken to end a pregnancy, it is called an induced abortion, or less frequently "induced miscarriage". The unmodified word abortion generally refers to an induced abortion. The most common reasons given for having an abortion are for birth-timing and limiting family size. Other reasons reported include maternal health, an inability to afford a child, domestic violence, lack of support, feeling they are too young, wishing to complete education or advance a career, and not being able or willing to raise a child conceived as a result of rape or incest.

Intact dilation and extraction is a surgical procedure that terminates and removes an intact fetus from the uterus. The procedure is used both after miscarriages and for abortions in the second and third trimesters of pregnancy. When used to perform an abortion, an intact D&E can occur after feticide or on a live fetus.

<span class="mw-page-title-main">Abortion in the United Kingdom</span>

Abortion in the United Kingdom is de facto available under the terms of the Abortion Act 1967 in Great Britain and the Abortion (No.2) Regulations 2020 in Northern Ireland. The procurement of an abortion remains a criminal offence in Great Britain under the Offences Against the Person Act 1861, although the Abortion Act provides a legal defence for both the pregnant woman and her doctor in certain cases. Although a number of abortions did take place before the 1967 Act, there have been around 10 million abortions in the United Kingdom. Around 200,000 abortions are carried out in England and Wales each year and just under 14,000 in Scotland; the most common reason cited under the ICD-10 classification system for around 98% of all abortions is "risk to woman's mental health."

<span class="mw-page-title-main">Abortion in the United States</span>

In the United States, abortion is a divisive issue in politics and culture wars, though a majority of Americans support access to abortion. Abortion laws vary widely from state to state.

<span class="mw-page-title-main">Partial-Birth Abortion Ban Act</span> 2003 U.S. federal law banning partial-birth abortion

The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late termination of pregnancy called "partial-birth abortion", referred to in medical literature as intact dilation and extraction. Under this law, any physician "who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both". The law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court in the case of Gonzales v. Carhart.

Late termination of pregnancy, also referred to politically as third trimester abortion, describes the termination of pregnancy by inducing labor during a late stage of gestation. In this context, late is not precisely defined, and different medical publications use varying gestational age thresholds. As of 2015, in the United States, more than 90% of abortions occur before the 13th week, 1.3% take place after the 21st week, and less than 1% occur after 24 weeks.

<span class="mw-page-title-main">Unborn Victims of Violence Act</span> Law that recognizes an embryo or fetus as a legal victim

The Unborn Victims of Violence Act of 2004 is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."

Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States and was essentially overturned in 2022. The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." While most international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of some countries.

In pregnancy terms, quickening is the moment in pregnancy when the pregnant woman starts to feel the fetus's movement in the uterus. It was believed that the quickening marked the moment that a soul entered the fetus, termed ensoulment.

The born alive rule is a common law legal principle that holds that various criminal laws, such as homicide and assault, apply only to a child that is "born alive". U.S. courts have overturned this rule, citing recent advances in science and medicine, and in several states feticide statutes have been explicitly framed or amended to include fetuses in utero. Abortion in Canada is still governed by the born alive rule, as courts continue to hold to its foundational principles. In 1996, the Law Lords confirmed that the rule applied in English law but that alternative charges existed in lieu, such as a charge of unlawful or negligent manslaughter instead of murder.

Pregnancy-associated femicide is a form of gender-based violence involving the murder of a woman during the period of pregnancy and up to 1 year after childbirth.

In Judaism, views on abortion draw primarily upon the legal and ethical teachings of the Hebrew Bible, the Talmud, the case-by-case decisions of responsa, and other rabbinic literature. While most major Jewish religious movements discourage abortion, except to save the life of a pregnant woman, authorities differ on when and whether it is permitted in other cases.

<span class="mw-page-title-main">Beginning of human personhood</span> Opinions on when humans become persons

The beginning of human personhood is the moment when a human is first recognized as a person. There are differences of opinion about the precise time when human personhood begins and the nature of that status. The issue arises in a number of fields, including science, religion, philosophy, and law, and is most acute in debates about abortion, stem cell research, reproductive rights, and fetal rights.

<span class="mw-page-title-main">Born alive laws in the United States</span> Fetal rights laws in US

Born alive laws in the United States are fetal rights laws that extend various criminal laws, such as homicide and assault, to cover unlawful death or other harm done to a fetus in utero or to an infant that has been delivered. The basis for such laws stems from advances in medical science and social perception, which allow a fetus to be seen and medically treated as an individual in the womb and perceived socially as a person, for some or all of the pregnancy.

Definitions of abortion vary from one source to another. Abortion has many definitions that can differ from each other in significant ways. Given the contentious nature of abortion, lawmakers and other stakeholders often face controversy in defining abortion. Language referring to abortion often reflects societal and political opinions . Influential non-state actors like the United Nations and the Roman Catholic Church have also engendered controversy over efforts to define abortion.

Abortion in Samoa is only legal if the abortion will save the mother's life or preserve her physical or mental health and only when the gestation period is less than 20 weeks. In Samoa, if an abortion is performed on a woman for any other reason, or if a woman performs a self-induced abortion, the violator is subject to seven years in prison.

Purvi Patel is an Indian American whose conviction and sentence to 20 years in prison in Indiana for feticide and child neglect was overturned by the Indiana Court of Appeals. The court pointed out that the lower court's ruling had been an "abrupt departure" from the intent of the feticide law as shown by prior usage, which consisted of cases in which a pregnant woman and her unborn child were the victims of violence. The court also said that it was not possible to claim that lawmakers had intended the feticide law to be used to prosecute women trying to abort because the state abortion laws had already since the 1800s explicitly protected pregnant women from prosecution. "The state's about-face in this proceeding is unsettling, as well as untenable" under prior court precedent, Judge Terry Crone wrote in the ruling. The court said that Patel endangered the child by not seeking medical care but that prosecutors failed to prove that her failure to do so resulted in the child's death.

Pregnancy loss is the loss of an embryo or fetus. The terms early pregnancy loss and late pregnancy loss are often used but there is no consensus over their definitions.

Abortion in Ghana is banned except when there is a valid exemption. The abortion should also be conducted only at a government hospital; registered private hospital, clinics registered under the Private Hospitals and Maternity Homes Act, 1958 and a place approved by the Minister of Health by a Legislative Instrument. Illegal abortions are criminal offenses subject to at most five years in prison for the pregnant woman who induced said abortion, as well as for any doctor or other person who assisted this pregnant woman in accessing, or carrying out, an abortion. Attempts to cause abortions are also criminal, as are the purveyance, supply, or procurement of chemicals and instruments whose intent is to induce abortions.

In accordance with Egyptian law, abortion is considered a criminal act that violates the right to life, as it is often intended to terminate the fetus right to future life. The Egyptian legislature has dedicated a separate chapter in the Penal Code, Title III, titled "Abortion of Pregnant Women and the Manufacture and Sale of Adulterated Drinks Harmful to Health." Egyptian law does not explicitly define abortion. Instead, it outlines the various forms of abortion and the corresponding penalties. The Egyptian Court of Cassation defines it as "deliberately terminating a pregnancy prematurely."

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