St. Joseph Michigan Criminal Defense Blog

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Child Abuse Laws

Court Declares a Fetus is Not a Child in Michigan Child Abuse Statute

Child Abuse Laws

The question of when a fetus becomes a person who is protected from experiencing certain harms under the law arose in Michigan in a case in which a baby tested positive for methamphetamine at birth. The baby in question weighed four pounds at birth and was abandoned by her mother at the hospital. The mother was subsequently barred contact with the baby and charged with child abuse consuming methamphetamine while pregnant. The mother was found guilty of first degree child abuse. On appeal, however, the Michigan Court of Appeals held that a fetus is not a child according to MCL 750.136b(1)(a) to sustain a conviction for first degree child abuse.

Who Qualifies as a Child Under Michigan Child Abuse Statute?

MCL 750.136b (2) defines the crime of first degree child abuse as knowingly and intentionally causing serious physical or mental harm to a child. A child is defined as a person under the age of eighteen who has not been emancipated. This code section does not make any reference to a fetus, leaving the question of whether a fetus qualifies as a child for purposes of this statute up for debate.

The Michigan Court of Appeals, however, answered the question of whether a fetus qualifies as a child in the case of People v. Guthrie when it held that the killing of a fetus was not homicide because a fetus is not a person before it is born; the fetus must be born alive an exist outside of the mother for it to be considered a person. Again, in the case of People v. Hardy the court held that a fetus is not a child to sustain a charge of child abuse for the use of cocaine mere hours before delivery. Furthermore, the Infant Protection Act defines a person as an infant that is alive and at least partially outside of the mother.

In the reasoning of the most recent case before the Michigan Court of Appeals, the court points out that the Legislature does refer to a fetus in a number of statutes, however, it neglected to do so in the child abuse statute. This, according to the Court, demonstrates that the Legislature did not intend for this law to apply to fetuses. The defendant’s conviction for child abuse was vacated based on this line of reasoning. Thus, the Michigan Court of Appeals held that a person cannot be convicted of first degree child abuse for causing harm to an unborn fetus.

What Crimes Against Fetuses / Pregnant Women Can Be Punished in Michigan?

Although a fetus does not qualify as a child for the purposes of prosecution under child abuse statutes in the state of Michigan, certain crimes, when committed against pregnant women, have enhanced penalties. In Michigan, it is a felony to commit an assault or a battery against a pregnant woman. Thus, committing an assault or battery against a pregnant woman in the state of Michigan carries the same enhanced penalties as committing an assault or battery with a deadly weapon.

You Need an Experienced Criminal Lawyer in Berrien County on your Side

If you or someone you know has been involved in a criminal case in which a fetus has suffered harm or is charged with a crime that involves causing harm to a fetus, you need a highly experienced criminal defense lawyer in Berrien County such as the reputable Peter J. Johnson Law Office, PLLC on your side. For further information or to schedule an appointment contact Peter J. Johnson Law Office, PLLC at 269.982.1100 or visit

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