Due to the emotional and fallacious tenor of the dissent, I am compelled to write to explain my reasons for my concurring in the majority opinion, rather than in the dissent.
The dissent is a classic example of the result of decision by emotion, rather than by reason. A judge, however, is obligated and required to apply the law as it is, rather than how he wishes it were, no matter how strong his personal feelings. If justice be determined by emotion rather than reason, justice is relegated to an end-justifies-the-means system, and impartial due process cannot exist.
The dissent does not discuss the only issue before us and determined herein, namely, whether or not the General Assembly has conferred upon the respondent court jurisdiction over the person and body of a pregnant woman for the alleged benefit of her unborn child. Whether or not the legislature should do so, ithas not.
Unfortunately, the dissent takes off on an improper and unwarranted tangent and poses the question of "whether relator has a legal right to take cocaine and opiates during the third trimester" of her pregnancy. Such question is specious and inflammatory. The answer, of course, is an obvious, emphatic "No!" No person has a legal right to take cocaine and opiates whether or not pregnant. Use of cocaine and opiates is illegal by any person and constitutes a criminal offense.
The dissent then continues with an unsupported fallacious outburst and suggests that, if the respondent court has no jurisdiction over the mother's body, the mother then is licensed to take cocaine and opiates during her *Page 176 pregnancy. This is so ridiculous that it should need no response. If it were made by counsel, we would deem it a frivolous argument subject to the penalties counsel must suffer for such a frivolous contention.
Additionally, the dissent focuses primarily upon the merits of the matter in the trial court, which not only is not before us but as to which we have no evidence upon which to predicate a determination. The dissent, however, based upon conjecture, speculation, and knowledge apparently gained from watching television programs, indulges in fanciful, instead of factual, conclusions, the accuracy of which we have no way of knowing from that which is properly before us. The fact that such allegations may have been made in the trial court does not make them correct any more than the fact that they may have been denied makes them incorrect.
The dissent then makes up for its lack of logical explanation as to the only issue before us (the fundamental jurisdiction issue) by use of buzz words such as "caution," "forbearance," and "furtherance of justice." Judges are men and women just like everyone else in society. We are not infallible, but we do have a job to do. But in performing our duties, we should do so fairly and impartially, setting aside our own personal opinions and feelings, and render decisions in accordance with the law as adopted by the General Assembly and not attempt to impose our own personal views of what the law should be, in order to remake and control society in our own personal concept of what society should be.
It is indeed unfortunate that the General Assembly has not yet enacted laws dealing with the rights of unborn children, at least during the third trimester, which even Roe v. Wade (1973),410 U.S. 113, would permit. Instead, the only Ohio laws deal with permitting abortions and protecting the life of aborted but viable fetuses. Implicit in the dissent is a suggestion that relator should be condemned because she, an alleged drug addict, chose to carry her child to childbirth, rather than abort it. Such suggestions as are contained in the dissent have no place in any legal decision, especially when predicated not upon evidence but upon allegations, rumor, conjecture, speculation, and information gained from watching television programs. Our justice system would indeed be in a sorry state if judicial decisions were predicated upon that which is observed watching television, instead of evidence presented at trial.
The dissent then goes forth to discussion of the merits of the trial court case, and the status of an unborn child, neither of which is before us nor determined by the majority herein. Even that analysis in the dissent is inconclusive as to the meaning of R.C. 2151.011(B)(1), and is inaccurate with respect to the basic jurisdictional issue before us, namely, whether a juvenile court has jurisdiction over the person and body of a pregnant woman so as to control her life and lifestyle during pregnancy for the alleged benefit of her unborn child. That is the only issue determined herein, despite the emotional outcry of the dissent.
Although not dispositive of the status of an unborn child with respect to all rights, the United States Supreme Court in Roe v.Wade, supra, expressly held that an unborn child is not a person within the contemplation of the constitutional due process protection. On the other hand, there are many instances where, once a child is born, the child's rights may relate back with respect to matters that occurred before the child's birth. Thus, in Williams v. Marion Rapid Transit (1949), 152 Ohio St. 114, 39 O.O. 433, 87 N.E.2d 334, the second paragraph of the syllabus holds that: *Page 177
"Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries `done to him in his * * * person' * * * and, subsequent to hisbirth, he may maintain an action to recover damages for the injuries so inflicted." (Emphasis added.)
Similarly, in Jasinsky v. Potts (1950), 153 Ohio St. 529, 42 O.O. 9, 92 N.E.2d 809, the Supreme Court held that a wrongful death action on behalf of the survivors could be maintained with respect to a child who died three months after its birth as a result of a prenatal injury negligently inflicted. Again, the child was born alive, and the issue was one of relation back to prenatal injuries. More recently, in Werling v. Sandy (1985),17 Ohio St.3d 45, 17 OBR 37, 476 N.E.2d 1053, the Ohio Supreme Court extended the doctrine with respect to a wrongful death action for the benefit of the survivor of a stillborn child, where the child was stillborn as a result of prenatal injuries, but again the relation back occurred only after birth, albeit stillbirth. None of these cases even remotely deals with the issue before us, namely, whether a juvenile court has jurisdiction over the person and body of a pregnant woman to control her life and lifestyle during pregnancy for the alleged benefit of her unborn child.
Likewise, the question before us is not as is implicitly assumed by the dissent, whether such jurisdiction should be conferred upon a juvenile court. As stated in the majority opinion, this court has no power or right to confer upon a juvenile court jurisdiction which has not been conferred upon it by the General Assembly. There is not even one word in the dissent explaining how the General Assembly has conferred jurisdiction upon the juvenile court over the person and body of a pregnant woman to control her life and lifestyle during pregnancy for the benefit of her unborn child. On the other hand, after birth of the child, the juvenile court undoubtedly has jurisdiction over the newborn child, which may well include inquiry as to whether a presently dependent, neglected, or abused condition of the child was created as a result of prenatal conduct of the mother. Such question is neither before us nor determined hereby. Nevertheless, the dissent relies upon the trial court decision of In re Ruiz (1986), 27 Ohio Misc.2d 31, 27 OBR 350, 500 N.E.2d 935, with respect to a child who was born addicted to heroin. That case again has no bearing upon the issue before us, but, obviously, the juvenile court had jurisdiction over the child since it had been born and was unquestionably a living person at the time. More importantly, the cases referred to in the dissent deal with the rights of an unborn child, not with the jurisdiction of a juvenile court.
Likewise, it has been held that an unborn child is "a being" for the purpose of application of laws of inheritance. SeePhillips v. Herron (1896), 55 Ohio St. 478, 45 N.E. 720. On the other hand, the Ohio Supreme Court has held that a viable unborn child is not a person within the meaning of statutes prohibiting the unlawful causing of the death of a person, in that case by vehicular homicide. See State v. Dickinson (1971), 28 Ohio St.2d 65, 57 O.O. 2d 255, 275 N.E.2d 599. See, also, Robbins v. State (1857), 8 Ohio St. 131.
All that evolves from the above is that the issue of when and at what time an unborn child becomes a person within the meaning of various laws is a complex issue, one not of easy resolution. If a child be born alive, generally, there may be a relation back in civil actions to prenatal injuries. But, as stated in the majority opinion, this issue need not be determined herein and is not decided by the majority decision herein. Rather, we have determined *Page 178 only a very narrow issue of jurisdiction of a juvenile court over the person and body of a pregnant woman so as to control her life and lifestyle during pregnancy for the alleged benefit of an unborn child. Until such time as the legislature sees fit to give such jurisdiction to the juvenile court, it has no such jurisdiction. This court has no right or power to confer such jurisdiction, and to do as the dissent implicitly suggests would be an abuse of power by this court.
Assuming the facts to be as speculated in the dissent,1 my personal feelings and reactions would be sympathetic to some of the views expressed therein. However, for me to join in the dissent unsupported by, and contrary to, law, and without a semblance of evidentiary support, would constitute an act of judicial irresponsibility on my part. I must, therefore, concur in the majority opinion because it is in accordance with law and the evidence in the record before us. As judges, we must set aside our personal feelings and opinions and determine cases fairly and impartially in accordance with law. Accordingly, I concur.
1 Newspaper and other informal sources indicate that the child has been born alive and is not addicted to drugs and has suffered no apparent harmful effects. However, there has been no filing made herein formally to advise the court of such circumstances, and we may not take cognizance of such circumstances until such time as the record herein reflects that they have occurred.