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A Better Partnership
September 30, 2016

COA: Fetus is not a “child” for purposes of the first-degree child abuse statute

A mother’s prenatal use of illegal drugs does not constitute child abuse under Michigan’s first-degree child abuse statute. In People v. Jones, No. 332018, the Court of Appeals held that a fetus is not a “child” for purposes of the statute. Consequently, a mother who delivered a baby that tested positive for methamphetamine was not guilty of first-degree child abuse.
The facts underlying defendant’s conviction surround her delivery of a baby with several health concerns. The baby tested positive for methamphetamine. After speaking with Child Protective Services at the hospital, defendant left the hospital against medical advice. The court placed the child under protection and prohibited contact with defendant. Defendant was charged with child abuse arising out of her prenatal conduct. During the plea hearing, defendant admitted to consuming methamphetamines and amphetamines approximately five days before delivering her child. Defendant pleaded guilty to first-degree child abuse under MCL 750.136b(2) and the trial court sentenced her to 3 to 10 years’ imprisonment. Defendant appealed.
The Court of Appeals held that the first-degree child abuse statute did not apply to defendant’s conduct and vacated her conviction and sentence. The Court reasoned that defining criminal conduct belongs to the Legislature. Utilizing principles of statutory interpretation, the Court determined that the Legislature did not intend to include a fetus within the term “child” for purposes of the first-degree child abuse statute. The child abuse statute makes no reference to fetuses or to conduct that harms a fetus. Furthermore, neither the definition of “child” in the child abuse statute, nor the general definition of “person” in the Michigan Penal Code make any reference to fetuses. Additionally, the Court of Appeals previously held that an unborn but viable fetus does not qualify as a “person” under the negligent homicide statute. Moreover, explicit references to “fetus” in other statutes indicated that the Legislature could expand the definition of “child” or “person” where it intended to create protection. Therefore, the Court of Appeals concluded that because a fetus is not encompassed within the definition of “child” under the child abuse statute, the defendant could not have caused harm to her “child” as required by the statute based solely on her prenatal methamphetamine use. 
The concurring opinion clarified that the Court of Appeals only addressed how to interpret “child” under the child abuse statute and applied the definition provided by the legislature.  The Court did not opine on whether a fetus should be included in the statutory definition of “child.”

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