(dissenting). .1 agree with the view of a majority of the court that prenatal injury to a child should not go unrequited by the one at fault. If, however, an unborn child is to be endowed with the right to enforce such requital by an action at law, I think that right should not be created by a judicial decision on the facts in a single case. Better, I believe, that the right should be the product of legislative action taken after hearings at which the Legislature can be advised, by the aid of medical science and research, not only as to the stage of gestation at which a foetus is considered viable, but also as to appropriate means — by time limitation for suit and otherwise — for avoiding abuses which might result from the difficulty of tracing causation from prenatal injury to postnatal deformity.
When, in England, the right — unknown to the common law — was created which permitted suit to recover damages for negligently causing the death of a human being, it was accomplished by legislative action.1 In our own jurisdiction a similar right of action — carefully limited as to time and by other measures to prevent abuse — has long been the subject of statute law *358adopted by the process incident to statutory enactment.2 That same process, in my opinion, is peculiarly appropriate for the solution of the problem now before us where unknown factors abound.
Accordingly, I dissent and vote for affirmance.
Loughran, Ch. J., Dye, Fuld and Froessel, JJ., concur with Desmond, J.; Lewis, J., dissents in opinion in which Conway, J., concurs.
Judgments reversed, etc.
Lord Campbell’s Act, 9 & 10 Vict., ch. 93.
Decedent Estate Law, art. 5.