(dissenting). I concur in Judge Burke’s dissenting opinion. I would merely express this additional view.
It is my firm moral and legal belief that life begins at conception. At that moment a foetus attains existence, both in fact and in legal contemplation; it is a person entitled to all of the protection accorded by our State and Federal Constitutions. To conclude otherwise is to countenance genocide and subject our population to what the majority so casually categorizes a legislative determination of policy. As Judge Burke incisively observes, our republic was fashioned to prevent such abuses. Our system of government is rooted in the natural law and it is against those strictures that our legislation as well as our Constitutions must be judged.
That standard simply does not give sanction to the view that one life may be declared forfeit because of the whim of another. *214No rational mind can accept the proposition that a parent may order the destruction of his child because it is not born possessed of normal faculties; nor may the child, weary of the burden of an aged and infirm father or mother, condemn the parent to death. Neither has a right to life which is superior to that, of the other and both our people and their Legislature may not, as a matter of policy, authorize such malefaction. I can draw no conceptual distinction in the case of abortion.
I am not insensitive to the plight of those who would be forced to bring children into these troubled times and recognize that men and women have both a legal and ethical right to decide whether they wish to do so. Abortion is not, however, a legitimate mode of effectuating one’s choice. Contraceptive devices are readily available and pregnancy may be avoided. Thus, the choice must and can be made prior to conception.
In my view, a decision to engage in sexual intercourse necessarily entails an acceptance of the consequences and must take into account the possibility that another life' may be Created. Our society has come to understand that life, in any form, is most precious and must be protected. We cannot, therefore, allow the life of an innocent foetus to be terminated by abortion.
Moreover, even if I could embrace the position espoused by the majority that nothing more than a question of policy is involved, I could hold no other view. Once the State recognizes, as it does, that an unborn child, or in some instances an unconceived child, has property rights, it is highly irrational to withhold the most valuable of all rights, which is life itself.
Accordingly, the order appealed from should be reversed.
Chief Judge Fuld and Judges Bergan and Gibson concur with Judge Breitel; Judge Jasen concurs in an opinion in which Chief Judge Fuld and Judges Bergan, Breitel and Gibson also concur; Judges Burke and Scilbppi dissent and vote to reverse in separate opinions in each of which the other concurs.
Order affirmed.