When can someone be charged under Maryland's fetal homicide law?

Posted at 5:30 PM, Sep 14, 2017
and last updated 2017-09-15 05:21:26-04

In Maryland an unborn child can be a murder victim. The fetal homicide law went into effect in 2005, and it's very clear.

"You would have to prove that the defendant intended to either kill or seriously injure the fetus, and that the fetus would have been viable had they been born,” said Baltimore County’s State’s Attorney Scott Shellenberger.

Nine years ago, Shellenberger became the first prosecutor in the state to charge someone for the death of an unborn baby.
David Miller was found guilty of shooting and killing his pregnant girlfriend as well as the pair's child she was carrying.

"We had the Medical Examiner testify to the jury the weight and length and size of the fetus, and then we actually put on the OBGYN from the victim, Ms. Walters, and he talked about the ability of that fetus to have survived outside the womb under those circumstances," Shellenberger said.

Viability is also key in the law. The developing infant must be able to live without it's mother for someone to be charged with fetal homicide.

"Obviously, the younger or the less age of the fetus will make it a little bit more difficult but it will come down to a medical opinion," said Shellenberger.

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In Neonatal Intensive Care Units, advancements in technology and care allow extremely premature babies to have better outcomes outside of the womb. A full-term pregnancy lasts 40 weeks, so when infants come into the world pre-term, there can be critical complications.

"They don’t have the developmental capacity from a lung standpoint, from a heart standpoint, a brain standpoint,” said MedStar Franklin Square MedStar Franklin Square Neonatologist Dr. Manisha Patel. “The mom was providing the environment for them to be able to continue to grow and develop and when a baby is born early that environment completely changes."

In the NICU, medical teams try to mimic that environment as best they can, using specialized breathing tubes and other tools to help the tiny humans make it home.

"Usually the lungs have to be developed to a stage that can respond to our ventilators and that generally happens around 23 weeks of gestation, so that is often the youngest that will even be able to respond to the interventions that we can do in helping them breathe," Patel said.

That threshold is different for every baby, and fetal homicide laws are designed to protect those little lives.