concurring in part and dissenting in part:
I agree with much of the majority opinion, but I disagree with its ultimate ruling that the trial court’s order must be set aside, and with the narrow view it takes of the state’s interest in preserving life and the unborn child’s interest in life.
More specifically, I agree'with the guidance the opinion affords trial judges as to how to approach a case like this, first determining the mother’s competency to make an informed decision whether to have a caesarean delivery and, if the mother is not competent, then making a substituted judgment for the mother. I also agree that, with respect to surgical procedures, the pregnant woman’s wishes, either as stated expressly or as discerned through substituted judgment, should ordinarily be respected and carried out unless there are compelling reasons to override them.
I disagree, however, with the majority’s holding, opinion at 1252, that the trial judge erred in failing to determine competency. I think it quite clear from the record that Judge Sullivan found A.C. incompetent. The court heard testimony that A.C. was “heavily sedated” and that there could be no “meaningful conversation with her at this point,” and that any reduction of her medication to “permit recovery of enough cognitive function on her part” to enable the physicians to get a sense of her preference regarding therapy might have the effect of hastening her death. Given the testimony that A.C. was unable to communicate her attitude toward the proposed surgery, if she had one, I submit that the most reasonable reading of the record is that the judge found her incompetent when he stated: “The Court is of the view that it does not clearly know what [A.C.’s] present views are with respect to the issue of whether or not the child should live or die.” A short time later, after hearing testimony about the sedated A.C.’s apparent reaction to the court’s decision regarding surgery, the trial judge said: “The Court is still not clear what her intent is.” I think the most reasonable reading of the judge’s findings made under emergency circumstances remains that A.C. was found not competent either to arrive at or to communicate an informed decision about the proposed procedure. It is clear that the trial judge, at the very least, , made a finding that was, under the majority’s explanation of appropriate procedures, sufficient to move the inquiry forward to the substituted judgment stage.
I disagree also with the holding that the trial judge committed reversible error in failing to make a determination of substituted judgment. No party explicitly asked that he should do so, and the majority *1254acknowledges that it could find no reported opinion applying the substituted judgment procedure to the case of an incompetent pregnant patient in A.C.’s situation. Majority opinion at 1249. Under the circumstances, the trial judge’s failure to exercise substituted judgment sua sponte can hardly be deemed the sort of egregious error that must be present before a trial court can be reversed on a plain error standard. See Woodard v. City Stores Co., 334 A.2d 189, 192 (D.C.1975).
For the same reason, I disagree with the holding of the majority that Judge Sullivan erred in proceeding to a balancing analysis, weighing the rights of A.C. against those of the state and the unborn child without first having found either a competent refusal or a finding of nonconsent through substituted judgment. Majority opinion at 1247. No party argued that the court should not proceed to such a balancing analysis.1 Because I disagree with this pivotal finding of error, I would affirm rather than reverse.
Another aspect of the majority opinion deserves comment. Having determined that the trial court must be reversed, the majority goes on to opine, in dictum, that this particular case is not one of those “extremely rare and truly exceptional” cases in which a patient’s wishes regarding the proposed medical treatment can be overruled by reason of a compelling state interest (here, the interest in protecting the life of the viable unborn child). This is dictum because, as the majority points out, “[w]e have ho reason to believe that, if competent, A.C. would or would not have refused consent to a caesarean.”2 Majority opinion at 1247. That being the case, and the actual application of the standard the majority adopts to the facts of this case not being necessary to the majority’s determination to reverse, one must regard as dictum the majority’s statement that this would not be one of those rare cases in which compelling interests might warrant overriding a mother’s decision not to consent.
I think it appropriate, nevertheless, to state my disagreement with the very limited view the majority opinion takes of the circumstances in which the interests of a viable unborn child can afford such compelling reasons. The state’s interest in preserving human life and the viable unborn child’s interest in survival are entitled, I think, to more weight than I find them assigned by the majority when it states that “in virtually all cases the decision of the patient ... will control.” Majority opinion at 1252. I would hold that in those instances, fortunately rare, in which the viable unborn child’s interest in living and the state’s parallel interest in protecting human life come into conflict with the mother’s decision to forgo a procedure such as a caesarean section, a balancing should be struck in which the unborn child’s and the state’s interests are entitled to substantial weight.
It was acknowledged in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the state’s interest in potential human life becomes compelling at the point of viability. Even before viability, the state has an “important and legitimate interest in protecting the potentiality of human life.” Id. at 162, 93 S.Ct. at 731. When approximately the third trimester of pregnancy is reached (roughly the time of viability, although with advances in medical science the time of viability is being reached sooner and sooner), the state’s interest becomes sufficiently compelling to justify what otherwise would be unduly burdensome state interference with the woman’s constitutionally protected privacy interest. Beal v. Doe, 432 U.S. 438, 446, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977). Once that stage is reached, the state “may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the pres*1255ervation of the life or health of the mother.” Roe, supra, 410 U.S. at 165, 93 S.Ct. at 732. In addressing this issue, it is important to emphasize, as does the majority opinion, that this case is not about abortion, majority opinion at 1245 n. 9;3 we are not discussing whether a woman has the legal right to terminate her pregnancy in its early stages. Rather, we are dealing with the situation that exists when a woman has carried an unborn child to viability. When the unborn child reaches the state of viability, the child becomes a party whose interests must be considered. See King, The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich.L.Rev. 1647, 1687 (1979) (viability, not birth, the determinative moment in development for purpose of determining when fetus is entitled to legal protection).
Turning to the rights of the child, tort law has long recognized the right of a living child to recover for injuries suffered when she was a viable unborn child. See Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946). In rejecting the notion that the viable unborn child is not an entity distinct from the mother, the court in Bonbrest stated:
It has, if viable, its own bodily form and members, manifests all the anatomical characteristics of individuality, possesses its own circulatory, vascular and excretory systems and is capable now of being ushered into the visible world.
Id. at 141 (footnote omitted).
Bonbrest proved to be a landmark case. In Greater Southeast Hospital v. Williams, 482 A.2d 394 (D.C.1984), this court noted that “every jurisdiction in the United States has followed Bonbrest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive.” Id. at 396. We went on to hold in Greater Southeast Hospital that a viable unborn child is a person within the coverage of the wrongful death statute, D.C.Code § 16-2701 (1981):
Inherent in our adoption of Bonbrest is the recognition that a viable fetus is an independent person with the right to be free of prenatal injury. The liability for prenatal injury recognized in Bonbrest arises at the time of the injury. If a viable fetus is a “person injured” at the time of the injury, then perforce the fetus is a “person” when he dies of those injuries, and it can make no difference in liability under the wrongful death and survival statutes whether the fetus dies of the injuries just prior to or just after birth. To hold otherwise would perpetuate the very evils the statutes were intended to prevent — that an injury would be inflicted for which no remedy existed and a tortfeasor would escape liability by inflicting injury so severe that death results.
Id. at 397.
We concluded: “In summary, having determined that a viable fetus is a person under the common law, it follows that injury to the fetus resulting in death is actionable under our wrongful death and survival statutes.” Id. at 398 (emphasis added).
The holdings in Bonbrest and Greater Southeast Hospital establish that for purposes that are, at least, relevant to this case, a viable unborn child is a person at common law who has legal rights that are entitled to the protection of the courts. In a case like the one before us, the unborn child is a patient of both the hospital and any treating physician,4 and the hospital or physician may be liable to the child for the child’s prenatal injury or death if caused by *1256their negligence. See Greater Southeast Hospital, supra; Bonbrest, supra.
Without going into the difficult question of the extent to which an unborn viable child may be entitled to protection under the Fifth, the Fourteenth, or other Amendments to the Constitution,5 the already recognized rights and interests mentioned above are sufficient to indicate the need for a balancing process in which the rights of the viable unborn child are assigned substantial weight. This view is consistent with the decision of the only appellate court which has heretofore considered this issue. In Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981), the Supreme Court of Georgia denied a stay of an order authorizing a hospital to perform a caesarean section to which the mother did not consent. Concurring, Presiding Justice Hill described the way in which the outcome was reached in the following language:
In denying the stay of the trial court’s order and thereby clearing the way for immediate re-examination by sonogram and probably for surgery, we weighed the right of the mother to practice her religion and to refuse surgery on herself, against her unborn child's right to live. We found in favor of her child’s right to live.
Id. 274 S.E.2d at 460.6
The balancing test should be applied in instances in which women become pregnant and carry an unborn child to the point of viability. This is not an unreasonable classification because, I submit, a woman who carries a child to viability is in fact a member of a unique category of persons. Her circumstances differ fundamentally from those of other potential patients for medical procedures that will aid another person, for example, a potential donor of bone marrow for transplant. This is so because she has undertaken to bear another human being, and has carried an unborn child to viability. Another unique feature of the situation we address arises from the singular nature of the dependency of the unborn child upon the mother. A woman carrying a viable unborn child is not in the same category as a relative, friend, or stranger called upon to donate bone marrow or an organ for transplant. Rather, the expectant mother has placed herself in a special class of persons who are bringing another person into existence, and upon whom that other person’s life is totally dependent. Also, uniquely, the viable unborn child is literally captive within the mother’s body. No other potential beneficiary of a surgical procedure on another is in that position.
For all of these reasons, a balancing becomes appropriate in those few eases where the interests we are discussing come into conflict. To so state is in no sense to fail to recognize the extremely strong interest of each individual person, including of course the expectant mother, in her bodily integrity, her privacy, and, where involved, her religious beliefs.
Thus, I cannot agree with the conclusion of the majority opinion that while we “do not quite foreclose the possibility that a *1257conflicting state interest may be so compelling that the patient’s wishes must yield ... we anticipate that such cases will be extremely rare and truly exceptional.” Majority opinion at 1252. While it is, fortunately, true that such cases will be rare in the sense that such conflicts between mother and viable unborn child are rare,7 I cannot agree that in cases where a viable unborn child is in the picture, it would be extremely rare, within that universe, to require that the mother accede to the vital needs of the viable unborn child.8
I turn now to the impact of this decision on future cases in this jurisdiction. Despite the majority’s admonition that “nothing in this opinion should be read as either approving or disapproving the holding in In re Madyun,” 114 Daily Wash.L.Rptr. 2233 (D.C.Super.Ct. July 26, 1986), majority opinion at 1252-1253 n. 23, I am concerned that the majority’s emphasis on the “extremely rare and truly exceptional” nature of the circumstances in which the unborn child’s rights may prevail may move the law toward the extinguishment of the rights of unborn children in cases like In re Madyun. In that case, the trial court was faced with a situation in which an expectant mother refused on religious grounds to consent to a caesarean section even though she was already in labor, and sixty hours had passed since her membrane had ruptured. Although the heavy risks of infection and possible death to the fetus in the absence of a caesarean section were explained to both parents, they refused to consent to the caesarean section. Because the child could not be delivered through the birth canal, the child faced a serious and increasing danger of death or brain damage, and the mother’s health was endangered as well.
After considering the facts and applicable law, the Superior Court granted the hospital’s request for authorization to deliver the baby by the most expedient means — a caesarean section.9 Counsel appointed to represent the unborn child had also joined the hospital’s request. A motions division of this court denied a stay of the trial court’s order. Pursuant to the trial court’s order, the caesarean section was performed, and a healthy child was born and survives.10
I next address the sensitive question of how to balance the competing rights and interests of the viable unborn child and the state against those of the rare expectant mother who elects not to have a caesarean section necessary to save the life of her child.11 The indisputable view that a woman carrying a viable child has an extremely strong interest in her own life, health, bodily integrity, privacy, and religious beliefs necessarily requires that her election be *1258given correspondingly great weight in the balancing process. In a case, however, where the court in an exercise of a substituted judgment has concluded that the patient would probably opt against a caesarean section, the court should vary the weight to be given this factor in proportion to the confidence the court has in the accuracy of its conclusion. Thus, in a case where the indicia of the incompetent patient’s judgment are equivocal, the court should accord this factor correspondingly less weight. The appropriate weight to be given other factors will have to be worked out by the development of law in this area, and cannot be prescribed in a single court opinion. Some considerations obviously merit special attention in the balancing process. One such consideration is any danger to the mother’s life or health, physical or mental, including the relatively small but still significant danger that necessarily inheres in any caesarean delivery, and including especially any danger that exceeds that level.12 The mother’s religious beliefs as they relate to the operation would appear to deserve inclusion in the balancing process.
On the other side of the analysis, it is appropriate to look to the relative likelihood of the unborn child’s survival. This could range from the situation in Madyun where the full-term child’s chances for survival were apparently excellent, through a case like the one before, us where the unborn child’s chances for survival were from fifty to sixty percent, and on to cases where the child’s chances for survival are less than even. The child’s interest in being born with as little impairment as possible should also be considered.13 This may weigh in favor of a delivery sooner rather than later. The most important factor on this side of the scale, however, is life itself, because the viable unborn child that dies because of the mother’s refusal to have a caesarean delivery is deprived, entirely and irrevocably, of the life on which the child was about to embark.
Turning to the specifics of this case, and reaching them as I, unlike the majority, must because of my view that the court did not commit plain error in bypassing substituted judgment and performing a balancing test, I think this court cannot on this record hold that the trial judge abused his discretion in striking the balance he did.
Weighed in the balance against ordering the procedure were two considerations that were central to the entire proceeding: the invasive and serious nature of the proposed surgery and the fact that such surgery cannot ordinarily be performed without the consent of the patient. Under the peculiar circumstances of this case, the influence of these factors was. diminished by the fact that it was not clear whether A.C. would have consented to the surgery or not. Before events began to close in on her, A.C. had agreed to a caesarean at twenty-eight weeks. Thus, she was not averse, in principle, to having that particular type of surgery. What was unresolved was whether she would consent to that surgery at twenty-six and one-half weeks, when the unborn child’s chances of survival were somewhat reduced and the chances of impairment to the child somewhat enhanced. It was clear that she had intended all along to carry her unborn child until the point the child could be successfully delivered, and she persevered in that intention even when she knew she would not live long, if at all, after her child was born. Even in the tragically difficult circumstances in which A.C. found herself at the very time of the court’s proceedings, she first appeared in her sedated state to agree to the procedure and then apparently to disagree. Under the circumstances, the court could deem these *1259matters, usually most pertinent to a determination of substituted judgment, to lessen the net weight of the factors that weighed against the performance of the surgery.14 Also to be considered in the balance was the rather minimal, but nevertheless undis-putable, additional risk that caesarean delivery presented for the mother.15
Turning to the interest of the unborn child in living and the parallel interest of the state in protecting that life, the evidence indicated that the child had a fifty to sixty percent chance of survival and a less than twenty percent chance of entering life with a serious handicap such as cerebral palsy or mental retardation. The evidence also showed that a delay in delivering the child would have increased the likelihood of a handicap. In view of the record before Judge Sullivan, and on the basis that there had been no plain error in not applying the sort of substituted judgment analysis that we for the first time mandate in today’s ruling, I think it cannot be said that he abused his discretion in the way he struck the balance between the considerations that favored the procedure and those that went against it.16
For the reasons stated above, I would affirm.
APPENDIX
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION
In re Madyun
Misc. No. 189-86
Diane Weinroth for parents.
Martin R. Baach for fetus.
Richard S. Love, Assistant Corporation Counsel, for the District of Columbia.
LEVIE, Associate Judge:Upon the oral petition of D.C. General Hospital (“Hospital”) for an order that the Hospital be authorized to perform a Caesarean section upon Ayesha Madyun to deliver her fetus, a hearing was convened at the Hospital at 10:30 p.m. on July 25, 1986. Diane Weinroth, Esq., accepted appointment by the Court to represent the parents, Yahya and Ayesha Madyun; Martin R. Baach, Esq., accepted appointment by the Court to be guardian ad litem for the fetus; and Assistant Corporation Counsel Richard S. Love represented the Hospital. *1260Testimony was taken from Dr. John Cummings, Chief Resident on the Georgetown University Obstetrical/Gynecological service, as well as from Mr. and Mrs. Madyun. After hearing testimony and arguments of counsel, the Court orally granted the Hospital’s petition at 1:05 a.m., on July 26 and then denied the parents’ motion for a stay.1 A telephonic appeal was heard and the decision of this Court was affirmed (Pryor, C.J. and Terry, J.).2
FINDINGS OF FACT
The mother of the infant, Ayesha Mad-yun, is a 19-year-old woman experiencing her first pregnancy. She arrived at the Hospital on July 25, 1986, at approximately 1:45 a.m., after previously having been to Greater Southeast Community Hospital for an unknown period of time. Upon admission to the Hospital, it was determined that she was at term; she related that her membrane had ruptured (water broken) some 48 hours earlier.3 Mrs. Madyun indicated throughout the entire time prior to the performance of the Caesarean section that she wanted a natural delivery. By 11:00 a.m. on July 25 she was seven centimeters dilated. When the hearing convened at the Hospital almost 12 hours later, Mrs. Mad-yun was still dilated at seven centimeters.' By the time of the hearing her contractions were coming at intervals approximately five minutes apart.4
Mr. and Mrs. Madyun met with the medical staff at approximately 4:00 p.m. and again at 8:00 p.m. on July 25 to discuss the available options. When no progress toward completing a natural (vaginal) delivery was evidenced by 8:00 p.m., it was recommended that Mrs. Madyun consent to undergo Caesarean section to deliver the fetus. Consent to perform a Caesarean section was denied. When questioned during the hearing, some four hours after the 8:00 p.m. conference, Mrs. Madyun reiterated her preference for a natural delivery and expressed her belief that a Caesarean section was not necessary. She understood the risks of infection to the fetus resulting from continuation of labor without delivery, but sought to explain her decision to decline a Caesarean section by reference to her religious beliefs. Mrs. Madyun testified that a Muslim woman has the right to decide whether or not to risk her own health to eliminate a possible risk to the life of her undelivered fetus.5
During a separate, longer interview, Mr. Madyun explained that his refusal to consent to the performance of a Caesarean was based upon his belief that there was no demonstrable danger at that point to either Mrs. Madyun or the fetus.6 For example, Mr. Madyun stated that there were no signs of the onset of sepsis except a slightly elevated temperature. Further, it was his belief that there had been insufficient opportunity for his wife to deliver vaginally. He also expressed his view that the Hospital had failed to permit Mrs. Mad-yun to engage in certain potentially natural acts of assisting delivery, such as standing up or walking around. Mr. Madyun similarly explained that a Muslim woman, confronted with a life or death situation, had the right to decide whether to risk her health or life to save an unborn fetus. The risks of infection and possible death to the fetus in the absence of a Caesarean section were likewise explained to and understood by Mr. Madyun.
*1261The medical basis for the Hospital’s emergency oral petition was presented through the testimony of Dr. Cummings. After receiving his M.D. degree at the George Washington University, Dr. Cummings took a two-year general surgery program at Emory University. This was followed by a four-year period as a physician in the U.S. Navy Medical Corps. He is now in the final year of a four-year obstetrical/gynecological program at Georgetown, and is Chief Resident of the Georgetown Service at the Hospital.
According to Dr. Cummings, normal labor for an uncomplicated first pregnancy is 10-15 hours. For a woman in her first pregnancy to remain dilated at seven centimeters for 12 hours was, in his opinion, abnormal.7 Normal obstetrical procedures with a term pregnancy call for delivery of a baby within 24 hours of the membrane’s rupture.
Failure to adhere to this procedure increases the risk of chorioamnionitis (inflammation of the fetal placental membranes) which can lead to fetal sepsis (infection). This, in turn, can result in the death of the baby or brain damage. Sepsis can start at any time 24 hours after rupture of the membrane. The likelihood of infection to the baby (fetus) increases greatly in proportion to the length of time between rupture of the membrane and delivery of the baby. It was the opinion of Dr. Cummings that each passing hour increased the risk of fetal sepsis.
As Dr. Cummings explained, one of the most insidious dangers in the situation presented by Mrs. Madyun was that sepsis could begin without detection and advance to the point of causing the death of the baby with little, or possibly no, warning. Prior to birth, it is difficult to determine the commencement of fetal sepsis. While there are certain symptoms of fetal sepsis (maternal temperature, foul smelling discharge, and fetal heartbeat), evidence of them may not become apparent until the baby is already septic.8 Given the fact that, by the time of hearing, Mrs. Mad-yun’s membrane had ruptured between 60 and 70 hours earlier, Dr. Cummings believed that the risk of fetal sepsis here was 50-75%.9 In contrast, the risk to Mrs. Mad-yun undergoing a Caesarean section was said to be 0.25%.
Against this background, the Hospital was seeking authorization to deliver the baby by the most expedient means — a Caesarean section.10 On behalf of the unborn child, Mr. Baach joined in the Hospital’s request that authorization for the Caesarean section be granted.
CONCLUSIONS OF LAW
When a competent adult declines medical treatment on religious grounds, the Court is obligated to respect this decision, even in a life or death situation, unless the state can “demonstrate a compelling interest that would justify overriding the individual’s choice.” In re Lucille Boyd, 403 A.2d 744, 748 (D.C.1979); In re Osborne, 294 A.2d 372, 374 (D.C.1972); Canterbury v. Spence, 150 U.S.App.D.C. 263, 271, 464 F.2d 772, 780, cert. denied, 409 U.S. 1064, [93 S.Ct. 560, 34 L.Ed.2d 518] (1972); In the Matter of B.B.H., 111 Wash.L.Rep. 1929, 1934 (D.C.Super.Ct., Oct. 6, 1983) (Schwelb, J.); In the Matter of Bentley, 102 Wash.L.Rep. 1221, 1225 (D.C.Super.Ct., June 17, 1974) (Burka, J.); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670, 674 (1971); cf. Application of the President and Directors of *1262Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000 (1964).
In the case of children, the state acting as parens patriae has the ability, in appropriate situations, to “restrict” a parent’s control of a child, even where the parent’s claim to control is founded upon religious rights or a more generalized “right[] of parenthood_” Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944). Thus, where the requisite factual predicate has been established, courts have ordered medical treatment of children over parental objections. See e.g., In the Matter of B.B.H., 111 Wash.L.Rep.1929 (Four hour old infant); In the Matter of Adam L., Ill Wash.L. Rep. 25 (D.C.Super.Ct., Jan. 6, 1983) (Schwelb, J.) (2 year old); Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978) (26 month old infant); In the Matter of Kevin Sampson, 37 A.D.2d 668, 323 N.Y.S.2d 253 (1971) (16 year old). With both children and adults, therefore, the question of the state’s “compelling interest” is a crucial factor to be determined.
Counsel for the parents, while not challenging these general propositions of law, questioned whether consideration of the state’s interest affecting a child already born applies with the same force to an unborn child. Under the facts here, the answer is yes.
The state has an “important and legitimate interest in protecting the potentiality of human life.” Roe v. Wade, 410 U.S. 113, 162 [93 S.Ct. 705, 731, 35 L.Ed.2d 147] (1973). At the point of “viability” 11 the state’s interest becomes “ ‘compelling” ’ id. at 163. To be sure, by the third trimester the state’s intent “become[s] sufficiently compelling to justify unduly burdensome state interference with the woman’s constitutionally protected privacy interest.” Beal v. Doe, 432 U.S. 438, 446 [97 S.Ct. 2366, 2371, 53 L.Ed.2d 464] (1977). A “compelling interest” of the state may likewise justify overriding religious convictions in cases of unborn infants. In re Osborne, 294 A.2d at 374; Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457 (1981) (per curiam) (unborn infant); Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537 (per curiam), cert. denied, 377 U.S. 985 [84 S.Ct. 1894, 12 L.Ed.2d 1032] (1964) (unborn infant); In the Matter of Application of Jamaica Hospital, 128 Misc.2d 1006, 491 N.Y.S.2d 898 (Sup.Ct.1985) (unborn infant).
Because Mrs. Madyun was at term, there was no issue as to viability. All that stood between the Madyun fetus and its independent existence, separate from its mother, was, put simply, a doctor’s scalpel. In these circumstances, the life of the infant inside its mother’s womb was entitled to be protected. See e.g., Jefferson v. Griffin Spalding, 274 S.E.2d at 460; Raleigh Fitkin-Paul Morgan Mem. Hosp. ¶. Anderson, 201 A.2d at 538; In re Appl. of Jamaica Hosp., 491 N.Y.S.2d at 989-900.
In Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981) the Georgia Supreme Court denied a request for a stay of an order of the Superior Court that a mother submit to a Caesarean section. There, the mother who was at term had a condition which made it “a 95% certainty that the child cannot survive natural childbirth (vaginal delivery).” Id. [274 S.E.2d] at 458. Indeed, the mother’s chances of surviving a vaginal delivery were only 50%. Id. Asserting religious beliefs, the mother refused to submit to the C-section or to any blood transfusion. Id. The trial court, however, found “ ‘that the state has an interest in the life of this unborn, living human being. The Court finds that the intrusion into the life of [the parents] is outweighed by the duty of the state to protect a living, unborn human being from meeting his or her death before being given the opportunity to live.’ ” Id. at 460. The Georgia Supreme Court denied the parents’ request for a stay. Id.12
*1263In the instant case, the Court was confronted with a 50-75% risk of infection for the infant, in view of the extended period of time (60 hours) since rupture of the mother’s membrane. The testimony adduced at the hearing was that the onset of infection to the infant could begin and progress to a potentially fatal point before symptoms of the infection became evident. To have required the doctors to continue a “wait and see” attitude could have had potentially fatal consequences to the infant. It is one thing for an adult to gamble with nature regarding his or her own life; it is quite another when the gamble involves the life or death of an unborn infant.
The Court had before it parents who, in part, refused a Caesarean section on the basis of religious beliefs. Although both parents impressed the Court as sincere, it was evident that the stronger basis for their individual decisions was the belief that the surgical procedure was not necessary and that additional steps could be taken to enhance the possibility of a vaginal delivery. Neither parent, however, is a trained physician. To ignore the undisputed opinion of a skilled and trained physician to indulge the desires of the parents where, as here, there is a substantial risk to the unborn infant, is something the Court cannot do.13 Indeed, even if the religious beliefs of the parents were the primary or sole reason for refusing a Caesarean, the state had a compelling interest in ensuring this infant could be born. See Jefferson v. Griffin Spalding, 274 S.E.2d at 460. “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Prince v. Massachusetts, 321 U.S. at 170 [64 S.Ct. at 444]. On these facts, the parents may not make a martyr of their unborn infant.
Accordingly, the Hospital is ordered to take such steps as medically indicated, including but not limited to a C-section, to preserve and protect the birth and safety of the fetus.
Interim Findings and Conclusions
Upon petition of D.C. General Hospital for an order that the Hospital be authorized to perform a Caesarean section upon Ayesha Madyun (mother) to deliver her fetus and having heard from Mr. and Mrs. Madyun, counsel for the Hospital, the parents, the guardian ad litem and Dr. Cummings:
The Court finds that Mrs. Madyun’s membrane ruptured at noon on July 23, 1986 and has been so far more than 60 hours; for almost 12 hours she has remained dilated at 7 cm.; that Dr. Cummings has given his medical opinion the fetus is at risk of fetal sepsis (infection) if a C-section is not performed at once [and that], the risk of sepsis increases. By contrast the risk to the mother of a C-section is at .25%. The basis for the parents’ objection is a religious belief that, as Muslims, it is the choice of the mother to decide between her health and body and that of the fetus. Dr. Cummings said that normal medical practice calls for delivery of a baby within 24 hours of the rupture of the mem*1264brane. There is no way to determine whether sepsis has or will begin and it can begin and progress to such a stage that death could be imminent. Mrs. Madyun’s labor pattern is aberrant according to Dr. Cummings. He also said the likelihood of infection is proportional to the time since the time of rupture and that sepsis can start any time after rupture. The risk of sepsis is between 50-75% under these conditions. No alternative medical procedures are available at this time; under the present circumstances, according to Dr. Cummings, sepsis can be fatal or lead to brain damage. Moreover, Dr. Cummings testified that there may be no signs of sepsis before it progresses to the point of causing death.
Given the significant risks to the fetus versus the minimal risks to the mother, the Court concludes that there is a compelling interest to intervene and protect the life and safety of the fetus.
Accordingly, the Hospital is ordered to take such steps as are medically indicated, including but not limited to a C-section, to preserve and protect the birth and safety of the fetus.
The findings and conclusions are prepared for expeditiously facilitating a decision under the circumstances. The Court reserves the right to supplement these based upon the record and tape recordings. The parties can submit pleadings if they desire.
1:05 a.m. 7/26/86
Richard A. Levie
Associate Judge
Affirmed per Judges Pryor and Terry 2:08 a.m. 7/26/86
. In the telephone hearing before a division of this court that followed immediately after the trial judge’s ruling, counsel for the mother acknowledged that balancing was appropriate.
. In view of this statement, I find puzzling the majority’s discussion at p. 1248, et seq., of "two additional arguments against overriding A.C.’s objections to caesarean surgery.” No such objections were found to exist.
. The majority opinion, however, oversimplifies matters when it states, p. 1245 n. 9: “[T]he issue presented in this case is not whether A.C. (or any woman) should have a child but, rather, who should decide how that child should be delivered.” The cruel realities of the situation made the issue far more difficult. It could better be stated as whether the unborn child should face a greatly reduced chance of survival upon post mortem delivery occasioned by a decision to forgo a caesarean procedure or whether, instead, the child should be afforded a probability of living as a result of a surgical procedure that involved both some risk to A.C. and an invasion of her bodily integrity.
. J. Pritchard, P. MacDonald, & N. Gant, Williams Obstetrics 267 (17th ed. 1985).
. I recognize that the Supreme Court has held that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. Roe v. Wade, supra, 410 U.S. at 158, 93 S.Ct. at 729. Nevertheless, this is a matter in which the policy of the law may evolve, and in the elastic frames of due process and equal protection analysis under the Fourteenth and Fifth Amendments, it may eventually be determined that viable unborn children are persons entitled, constitutionally, to protection of their liberty, their property, and their very lives, even though they may not be considered persons for some other purposes under the Constitution. Ultimately, the question of whether a viable unborn child is considered a person under the Fifth and Fourteenth or other Amendments to the Constitution for purposes of the right6to survive is one of policy for the courts.
As one commentator has pointed out, however, the right of the viable unborn child to legal protection does not depend upon such classification as a person. King, supra, 77 Mich. L.Rhv at 1687.
. The majority opinion states that "Jefferson is of limited relevance, if any at all, to the present case.” Majority opinion at 1243. I disagree. The Georgia courts balanced the interest of the unborn child in living against a competent mother's refusal to undergo a caesarean section, and ruled in favor of the child. That some of the circumstances were different from those in the case before us does not alter this most salient feature of the case.
. The majority opinion at 1251 n. 21 quotes Opinion No. 55 of the Ethics Committee of the American College of Obstetricians and Gynecologists as follows: "[t]he welfare of the fetus is of the utmost importance to the majority of women; thus only rarely will a conflict arise.” Another observer described the attitude of most expectant mothers more graphically: "The vast majority of women will accept significant risk, pain, and inconvenience to give their babies the best chance possible. One obstetrician who performs innovative fetal surgery stated that most of the women he sees ‘would cut off their heads to save their babies.’ ” Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 Cai.if.L.Rhv. 1951, 1959 (1986).
. To the contrary, it appears that a majority of courts faced with this issue have found that the state’s compelling interest in protection of the unborn child should prevail. See Noble-Allgire, Court-Ordered Cesarean Sections, 10 J. Lhgai. Man. 211, 236 (1989). I add that in mapping this uncharted area of the law, we can draw lines, and a line I would draw would be to preclude the use of physical force to perform an operation. The force of the court order itself as well as the use of the contempt power would, I think, be adequate in most cases. See id. at 243.
. The opinion of Superior Court Judge Richard A. Levie in Madyun is attached as an appendix to this opinion.
. The Washington Post, Dec. 13, 1988, at Dl.
. For a thoughtful proposal for judicial standards in this area, see Noble-Allgire, supra, 10 J. Lhgai. Mhd. at 244-48. And for a considered proposal for the standards to be used where the wishes of the mother conflict with the interests of her unborn child in the related area of medical treatment of the fetus, see Comment, The Fetal Patient and the Unwilling Mother': A Standard for Judicial Intervention, 14 PacJL.J. 1065, 1093 (1983).
. In Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), a case involving abortion, the Supreme Court repeated its view that any trade-off between the woman’s health and additional chances of fetal survival was undesirable. Id. at 769, 106 S.Ct. at 2183. Whether this applies to caesarean cases is unclear. See Noble-Allgire, supra, 10 J.Legai. Med. at 239.
. Although avoiding impairment is a legitimate concern, it would be inappropriate for a court to weigh against the unborn child the possibility that it would be “handicapped” or "flawed” at birth because such persons can have lives and can enrich the lives of others.
. An additional factor, which is difficult to assess but probably deserves some consideration, is that caesarean deliveries are quite common. According to the Bureau of the Census, the Department of Commerce, 24.1 per cent of all births were by caesarean section in the year 1986, the latest year for which it furnished statistics. Statistical Abstract of tiih United States 65 (109th ed. 1989). Without detracting from the seriousness of the caesarean procedure, its invasiveness, and the somewhat greater risk it entails, it seems reasonable to consider the fact that nearly a quarter of all births are caesarean not only in the substituted judgment analysis but also in the balancing analysis that should resolve a conflict between mother and unborn child.
. I note that there was no evidence in this case that the caesarean procedure was likely to shorten A.C.’s life. Although the trial judge alluded in his findings to testimony to that effect, he was apparently referring to argument of counsel rather than testimony. After the judge’s findings were made, the record was reopened to receive information from Dr. Hamner who had just spoken to A.C. In reporting that she seemed more lucid and had three times answered that she assented to a caesarean delivery, he said he had asked her if she realized that she "may not survive the surgical procedure.” Because Dr. Hamner had already testified that in his opinion A.C. had less than twenty-four hours to live, and because he presumably was concerned with obtaining the consent of a patient informed of even those risks that were less than probable, this cannot be deemed the statement of an opinion that the surgery would probably shorten A.C.’s life.
.The majority states that “a remand for supplemental findings would be inappropriate and futile because the caesarean has been performed and cannot be undone” and remands for "such further proceedings as may be appropriate." Majority opinion at 1253. Yet one of the two grounds the majority assigns for nonmootness is that "resolution of the legal issues might affect a separate action, actual or prospective, between the parties.” Majority opinion at 1241-1242. The trial judge who heard the testimony is still available, and a transcript of the testimony has been prepared. The evidence would support either a finding that A.C.’s substituted judgment would be to undergo the surgery or a finding to the contrary. Because we have held the case not moot, I would remand for findings on that issue.
. Although the Court prepared interim findings of fact and conclusions of law on July 26, 1986, this Memorandum Opinion and Order is a more detailed explication of the basis for the Court's decision in accordance with the testimony adduced at the hearing.
. The interim Findings and Conclusions of the Court were read to the Court of Appeals and are attached hereto.
. Mrs. Madyun testified that her membrane had ruptured at noon on July 23, 1986.
. While use of an internal fetal monitor was not permitted by Mr. and Mrs. Madyun, an external monitor was attached.
. Once delivered, neither Mr. nor Mrs. Madyun seemed to object to employment of medication to treat any infection of the baby.
. At no time did the Court or counsel question the legal competence of either parent.
. None of counsel present at the hearing questioned the competence or expertise of Dr. Cummings. Based upon Dr. Cummings' education and experience, the Court was satisfied with respect to the doctor's expertise and competence.
. The only symptom present here was a slightly elevated maternal temperature.
. Excluding any examinations at Greater Southeast, Mrs. Madyun had experienced ten vaginal exams since admission to the Hospital. The number of examinations also increases the risk of introducing infection into the body.
.Realizing that normal obstetrical criteria calls for delivery within 24 hours of rupture, and the unchanged degree of dilation for almost 12 hours, Dr. Cummings believed that protrusion (a labor inducer) was not appropriate.
. Viability is when the fetus "is, potentially able to live outside the mother’s womb, albeit with artificial aid_” (footnote omitted). Roe v. Wade, 410 U.S. at 160 [93 S.Ct. at 730].
. See also, Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 201 A.2d 537 (blood transfusion necessary to save life of mother and unborn infant (32 wks.) ordered over religious *1263objections); Application of Jamaica Hosp., 491 N.Y.S.2d 898 (blood transfusion ordered over religious objections to stabilize condition of mother and save unborn child that was not yet viable).
. A case such as this puts the Hospital and its staff in an awkward position.
Hospitals exist to aid the sick and the injured. The medical and nursing professions are consecrated to preserving life. That is their professional creed. To them, a failure to use a simple, established procedure in the circumstances of this case would be malpractice, however the law may characterize that failure because of the patient’s private convictions. A surgeon should not be asked to operate under the strain of knowing that a transfusion may not be administered even though medically required to save his patient. The hospital and its staff should not be required to decide whether the patient is or continues to be competent to make a judgment upon the subject, or whether the release tendered by the patient or a member of his family will protect them from civil responsibility.
John F. Kennedy Mem. Hosp. v. Heston, 279 A.2d at 673.