Do you expect consistency in our flawed judicial system? The crux of the matter is that it should not be up to the government to decide when a fetus becomes a human. The government has no right to interfere in that matter. This leaves it up to the mother, and so in an ideal world it would be up the mother whether to determine if the fetus was a human or not and therefore whether or not a double murder was commited. Unfortunately the mother is dead, so we assume the mother would consider the fetus a child and don't really care if we aren't giving the murderer the benefit of the doubt.