I am unable to agree with the majority opinion in this case. The grounds upon which the disagreement rests are therefore stated.
The facts in the case before us are: The infant plaintiff was born on May 2d 1935. His mother, Pauline Stemmer, on three occasions prior to the birth of the infant, was subjected by the defendant physician to X-ray treatment. Prior thereto, the defendant, her family physician, had diagnosed her symptoms as caused by tumor. His examination of the patient was manual. Any one of several tests or analyses, commonly invoked in the medical profession, if made, would have revealed, with almost precise exactitude, that the patient was pregnant. The last occasion on which Mrs. Stemmer was subject to X-rays was on March 14th, 1935, about six weeks prior to the time the child was born. The infant is described by the doctors as a microcephalic idiot. It was prematurely born. It hasn't power to walk, talk, hear or see. That this condition is the result of the application of these Roentgen rays was found as a fact by the jury upon consideration of competent evidence. The issue of negligence was also concluded by the jury's finding. *Page 464
The main question therefore is whether the child for these prenatal injuries, resulting from the application of the rays, has a cause of action. The opinion of the majority is that at the common law, in the absence of statute in this state, there is no right of action accruing to a child when born for injuries done to it before birth.
We turn to the common law. Blackstone has this to say: "Life is an immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law [italics supplied] as soon as an infant is able to stir in the mother's womb * * * An infant en ventre sa mere is supposed in law to be born for many purposes. It is capable of having a legacy or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use and to take afterwards by such limitation, as if it were actually born. And in this point the civil law agrees with ours." (The editor has a note at this point as follows: "Those who are in the womb, are considered by the civil law to exist in the nature of things as they are capable of being benefitted." Ff. 1.5.26). (Jones 220, [*]p. 129.)
Blackstone also says that if a woman "be quick with child and by a potion or otherwise killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was by the ancient law homicide or manslaughter, citing Brockton L. 3.C.21." Sir Edward Coke considered it a "heinous misdemeanor."
The common law then recognizes an unborn child as a person.
Now if such child be not a person why is an abortion illegal at the common law? I do not contend that the analogy between crime and tort is a true one for all purposes. The former offends the state; the latter is an invasion of the rights of an individual. The former calls for punishment; the latter calls for compensation for a wrong. If such unborn child is to be regarded as a non-entity, actually or legally, why may it not at the common law be destroyed with impunity? Such unborn child has existence. The law does not concern itself *Page 465 with non-entities. If the common law protects the rights of the unborn child and if every intendment in the law is favorable to him, the inference is inevitable that such unborn child is a person and possesses the rights that inhere in a person even though he is incapable himself to assert them. If the unborn child may not legally be deprived of his life it is hard to understand how that life may with impunity be totally impaired by the tort of a third person.
It is no answer to say that there is no remedy because a cause of action is not written down in the common law in precise formula. We cannot expect to find it charted in so many words. Rather is it implicit in the common law — else we admit that the law has no remedy for a grievous wrong. If it be a crime to inflict injury on the unborn, so that it is maimed when born, by what logic can one say that the injured child may not have damages from the wrongdoer? At common law an unborn child might be appointed executor; he might be legatee or devisee; he might have a guardian; waste on his expectant estate might be enjoined, and those things might be done at law which were for his benefit. So, too, a woman under sentence of death for a homicide may not be executed while she be quick with child. These examples from the common law are eloquent recognition of the child's personal rights and a postulate of its personality. If the civil rights of an unborn child begin with conception as to property and the like, upon what reasonable ground may there be a distinction against its rights to recover for serious personal injuries done it through the negligence of a physician?
Turning to the authorities upon which the majority opinion is predicated, we find ourselves in disagreement with the logic of their opinion. The main case seems to be Dietrich v.Northampton, 138 Mass. 14. That opinion says that no case has been found that held that such right of action might be maintained by the infant upon birth. This is not persuasive. It is a misapplication of the doctrine of stare decisis. The birth of children was managed in the olden days by practitioners of midwifery, not by doctors who specialized in obstetrics. The plaintiff in the Dietrich case was the administrator of deceased child whose mother fell on a defective *Page 466 sidewalk. The accident caused a miscarriage. The child, enventre sa mere at the time of the happening, died a few minutes after birth. Much of the opinion in that case is sheer dicta. Written in 1884, it concludes by saying no cause of action accrued because at the time of the happening the child was part of the mother (pars viscerum matris). With that premise stated as a fact it was easy enough to come to the conclusion arrived at; but the premise is not true as a matter of elementary physiology. While it is a fact that there is a close dependence by the unborn child on the organism of the mother, it is not disputed to-day that the mother and the child are two separate and distinct entities; that the unborn child has its own system of circulation of the blood separate and apart from the mother; that there is no communication between the two circulation systems; that the heart beat of the child is not in tune with that of the mother but is more rapid; that there is no dependence by the child on the mother except for sustenance. It might be remarked here that even after birth the child depends for sustenance upon the mother or upon a third party. It is not the fact that an unborn child is part of the mother, but that rather in the unborn state it lived with the mother, we might say, and from conception on developed its own distinct, separate personality.
Then the case of Walker v. Great Northern Railway ofIreland, Ir. L.R. 28 C.L. 69, decided in 1890; action by infant, injured while en ventre sa mere, the mother being a passenger on the railroad. The child was born crippled. The action was for unskillful performance of the contract to carry the mother as passenger. A demurrer to the declaration was sustained generally on the theory that the contract did not comprehend the unborn infant.
In the case of Nugent v. Brooklyn Heights Railway Co.,154 App. Div. 667; 131 N.Y. Sup. 367, the complaint claiming damages for injuries done to an unborn child was rejected because the action depended on contract. In other words, the contract was to carry the mother, not the child of which the carrier had no knowledge or notice. But it seems to us that such reasoning has little to commend it. Surely a railway *Page 467 carrier knows, or should know, that a certain proportion of women passengers will be with child. Much reliance was placed on the Walker case, supra.
A Pennsylvania case, Berlin v. Penney Co., 339 Pa. 547, relied upon the rule of law as stated by Restatement of Torts, § 869, to the effect that no such cause of action existed at the common law. To the same effect are the other cases with which the majority opinion agreed.
The real reason for these holdings, we think and it is not at all concealed in some of the opinions, is a rule of convenience. There would be many cases, it is feared, that would be founded on fraud and possibly injustice might result from them; but these reasons should not weigh with the court. The legislature has power to deal with the situation and may prescribe limitations. The same objection may be advanced against many law actions that are encountered day after day in our trial courts. Many of them are unjustified but the fact that some people will institute ill-founded or fraudulent causes of action is no reason to deny a cause of action where by a preponderance of the credible evidence it appears that injury has resulted from the negligence of another. Here we have a wrong and no remedy. In this class of cases we recognize the difficulty of proof for both sides and if that be the objection the legislature has power to remedy it. But the principle involved in this case should be decided on rules of reason and not of convenience or lack of authority. The law of negligence is based upon two elements — (1) negligence on the part of the actor, and (2) injury to the individual. The interval between the negligent act and the injury to the person harmed is of no consequence except as to its evidential value in the matter of cause and effect. If the cause be admitted or proved what difference does it make if the injury becomes evident at a later period in the case of such infants?
The decision in Allaire v. St. Luke's Hospital (1900),184 Ill. 359; 56 N.E. Rep. 638, follows the reasoning of the Dietrich case, supra, and excluded a cause of action by an infant for pre-natal injuries. We pointed out above that the opinion in that case was in part, at least, based on an erroneous fact premise. *Page 468
In Drobner v. Peters, 232 N.Y. 220; 133 N.E. Rep. 567, the Court of Appeals of New York reversed an Appellate Division decision and likewise held that no cause of action arose for injuries to an unborn infant. The vote was not unanimous; the majority followed the logic of the Dietrich and the Walker cases.
A reading of all these authorities discloses that the courts recognized the beneficence of the common law for the protection of unborn infants against the criminal conduct of others and as to inheritance and property rights without saying that such protection and rights exist as exceptions or statutory declarations. But when they follow the principle of the Dietrich case and deny a cause of action to infants on the ground that the unborn child is not a separate and legal entity, they do nothing to reconcile the contradiction or at least the anomoly between the common law rights in favor of the infant, which they recognize, and the natural right of the infant to have compensation for pre-natal injuries negligently inflicted, which they do not recognize. Compare Kine v. Zuckerman, 4 Pa.Dist. Co. R. 227.
The judgments should have been affirmed.
Mr. Justice Perskie, Judges Rafferty and Hague authorize me to say that they agree with the views here expressed. Mr. Justice Donges requests me to say that the facts proved supported a cause of action for the infant.
For affirmance — THE CHIEF JUSTICE, DONGES, PERSKIE, RAFFERTY, HAGUE, JJ. 5.
For reversal — THE CHANCELLOR, PARKER, CASE, BODINE, HEHER, PORTER, DEAR, WELLS, THOMPSON, JJ. 9.
For reversal not on opinion — COLIE, J. 1. *Page 469