Assault Causing Death of Unborn Child-feticide.
Section 10. Assault Causing Death of Unborn Child-feticide
A person commits the offense of feticide if he intentionally or mistakenly kills an unborn child by causing harm to the mother of the child. Two types of Feticide:
- Intentional feticide
- Mistake feticide
Section 10.1 An Unborn Child
An unborn child is a child in utero, a fetus at any stage of development carried in the womb.
Section 10.2 Intentional Feticide
Intentional feticide occurs when an actor intended to kill the unborn child or the actor intended to harm the mother and the actor’s conduct was likely to cause death of the unborn child.
Section 10.3 Mistake Killing of the Unborn Child
Mistake killing of the unborn child occurs in all circumstances not listed in section10.2.
Explanatory Notes
Section 10 adopts the Maliki and Shafi’i school of thought classification that feticide is either intentional or by mistake. See 7 Nihayat al-Muhtaj ila Sharh al-Minhaj fi al-Fiqh ala Madhab al-Imam al-Shafi’i’ 363.
To convict a person of feticide, the actor’s assault on the mother must cause death of the unborn child. It means that the offense is not committed unless the fetus is totally separated from the mother’s womb and is dead. Imam Shafi’i and Imam Ahmed suggested that it does not matter if the separation between the mother and the unborn child occurred while the mother is alive. Separation may occur after the mother’s death. Imam Malik, Imam Abu Hanafi and Imam al-Shafi’i suggest if the fetus departed his mother womb completely alive, he is a live birth.
Section 10.4 Punishment for Assault Causing Death of Unborn Child-Feticide
The punishment for feticide is:
- Diya of an amount of not less than….and not exceeding ……., if the unborn child was dead when separated from his mother.
- Death penalty if the unborn child was born alive and died because of the actor’s conduct.
Explanatory Notes
The amount of Diya in section 10.4 (1) depends on the actor’s mental element. In intentional feticide the actor must pay much higher amount than mistake feticide.
Section 10.5 Assault on a Pregnant Woman That Does Not Cause Death of Unborn Child
An assault on a mother that does not cause death of unborn child is punishable by Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding….
