In my opinion all four causes of action should be dismissed.
In determining that a "viable cause of action” for "wrongful life” exists in this case on behalf of the infant (sixth cause of action), the majority has seen fit to ignore a plethora of judicial precedent to the contrary, not only from other jurisdictions (see, e.g., Zepeda v Zepeda, 41 Ill App 2d 240, cert den 379 US 945; Gleitman v Cosgrove, 49 NJ 22; Aronoff v Snider, 292 So 2d 418 [Fla]; Ann. 22 ALR3d 1441, 1443); but likewise from this State as well (see Williams v State of New York, 18 NY2d 481; Greenberg v Kliot, 47 AD2d 765, mot for lv to app den 37 NY2d 707; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, affd 30 NY2d 695). "Being born under one set of circumstance rather than another or to one pair of parents rather than another is not a suable wrong that is cognizable in court” (Williams v State of New York, 18 NY2d 481, 484, supra).
Lacking judicial precedent, some common-law rule, or a clear statutory promulgation on which to base its conclusion that "wrongful life” should now be accorded judicial approbation, the majority justifies this unwarranted and unprecedented extension of tort liability on a simplistic declaration, to wit: "cases are not decided in a vacuum; rather, decisional law must keep pace with expanding technological, economic and social change.” The question which must be posed to the majority at this point is what "expanding, technological, economic and social change” has occurred to justify this startling about-face since this court dismissed a similar cause of action in Greenberg v Kliot (47 AD2d 765) on March 17, *901975, and for which leave to appeal was denied by the Court of Appeals (37 NY2d 707) on July 10, 1975.
Manifestly, this is not a question of the court keeping pace with social change, but rather of rushing into the adoption of a radical social concept having no basis in law, namely, that there may be a suable wrong stemming solely from the existence of life.
Moreover, the majority’s further reasoning that the cause of action for "wrongful life” emanates from a public policy consideration "inherent in the abolition of the statutory ban on abortion” is equally fallacious. All four causes of action herein in dispute are based not on the mother’s right to have an abortion under the "[¡justifiable abortional act of 1970” (Penal Law, § 125.05, subd 3), but rather upon the right of the parents not to conceive another child. It is the understatement of the ages to observe that the choice of parents to conceive or not to conceive antedated the 1970 change in the law prohibiting abortions, and that no right to recover damages for having been conceived and born rather than never to have been conceived or born was known at common law. It should also be noted that the facts set forth in Greenberg v Kliot (supra), in which this court dismissed a related cause of action, occurred after the State Legislature had legalized abortions performed within 24 weeks from the commencement of a pregnancy (Penal Law, § 125.05, subd 3). In fact, the plaintiffs in Greenberg specifically argued in their brief that with the advent of the new, liberal abortion law, public policy in this State, which was the raison d’etre for the decision in Stewart v Long Is. Coll. Hosp. (35 AD2d 531, affd 30 NY2d 695, supra), had changed, and thus the cause of action for the child should be sustained. However, this court rejected such argument when it affirmed Special Term’s dismissal of the child’s cause of action, citing the Stewart case.
The holdings in Greenberg and Stewart, as well as the Court of Appeals’ determination in Williams v State of New York (18 NY2d 481, supra), wherein a cause of action by a child for having been born out of wedlock was dismissed, clearly demonstrate that the public policy of this State favors life over nonlife and birth over nonbirth or nonconception. Programs instituted by concerned individuals and organizations with respect to handicapped, deformed or retarded children do not denigrate or stigmatize those children with the label "unwanted”, as pleadings in "wrongful birth” cases often *91do, but instead have as their goal the training and encouraging of such children in order to enable them to assume meaningful and important roles in our society. That penal sanctions have been lifted with respect to abortions performed during the first 24 weeks of pregnancy has in no way changed our public policy in this sensitive area. Statutes should not be interpreted so as to declare a radical change in public policy if the language therein used does not manifest the intent that such change is to be effected (Roberge’s Case, 330 Mass 506). Historically, a cause of action for "wrongful death” (as distinguished from "wrongful life”), was accorded judicial recognition only after it became a creature of a legislative body. By a parity of reason, the same should be true with respect to the concept of "wrongful birth” or "wrongful life”. Essentially, a claim for "wrongful death” is based on the premise that a life was terminated which should not have been terminated, whereas a claim for "wrongful life” or "wrongful birth” is predicated on the premise that a life has evolved which should not have evolved.
At common law no civil action would lie for causing the death of a human being. Legislative enactment was the exclusive source and boundary of the liability and the remedy (Phoenix Ind. Co. v Staten Is. R. Tr. Ry. Co., 251 NY 127, 136). The first of the "death acts” took effect in England on August 26, 1846 (9 & 10 Vict, ch 93), and provided that an action would lie against a person only where death was caused by his "wrongful act, neglect, or, default” in a case where such a cause of action might have been maintained by the person injured if death had not ensued. The first "death statute” in this State was enacted in 1847 (L 1847, ch 450) and was almost identical in wording and purpose with the English act (Greco v Kresge Co., 277 NY 26, 32-33).
Today’s wrongful death statute (EPTL 5-4.1), effective September 1, 1967, was derived from section 130 of the former Decedent Estate Law (L 1920, ch 919, eff April 15, 1921), which, in turn, was derived from section 1902 of the Code of Civil Procedure. Under section 130 of the Decedent Estate Law and carried over to EPTL 5-4.1, the new and original cause of action which had been legislatively created was based upon the pecuniary injury which the surviving spouse and next of kin suffered by reason of the wrongful act, neglect or default of the defendant.
Thus, it is evident that the right to sue for "wrongful *92death”, a concept not nearly as controversial as "wrongful life”, nevertheless evolved, not through judicial interpretation and extension of judicial precedent, but solely through legislative action. The same is true with respect to other social changes which over the years have had a profound influence on the law of torts, such as workmen’s compensation and no-fault insurance. Ramifications stemming from claims for damages for "wrongful life” would be many and multifaceted. Undoubtedly, they would affect drastically not only the doctor-patient relationship, but also the relationship of parent to child and parent to parent. Such questions, I submit, are for sober reflection by a legislative body in the first instance, and not for the courts.
I also disagree both with my colleague, Mr. Justice Cohalan, and with Special Term, that the sixth cause of action, asserted on behalf of the child, is not one for "wrongful life”, but rather for conscious pain and suffering allegedly caused by the negligence of the defendant doctors. What has been overlooked by both my colleague and Special Term is that this court, on two earlier occasions, dismissed similar causes of action asserted on behalf of a child born with physical defects, on the ground that they were actions for "wrongful birth”, even though the pleadings sought damages for physical injury and conscious pain and suffering.
For example, in Stewart v Long Is. Coll. Hosp. (35 AD2d 531) the cause of action on behalf of the child for the defendant hospital’s failure to bring about a therapeutic abortion of her mother recites, inter alia: "That by reason of the premises and the wrongful, unlawful and negligent acts and omissions on the part of the defendant, aforesaid, the plaintiff, Rosalyn Stewart, was rendered sick, sore, lame and disabled; was seriously and permanently injured; suffers and will continue to suffer agony in body and mind; was and will be rendered unable to attend to her usual duties and was and will be compelled to secure medical aid and medicines in order to cure or minimize her injuries, all to her damage in the sum of Three Hundred Thousand ($300,000) Dollars” (emphasis supplied).
Moreover, set forth in the bill of particulars on behalf of the child in Stewart, was the claim that she was afflicted with cataracts, deafness and congenital heart disease, and that her "mentation * * * will be retarded * * * with respect to physical and mental disabilities indicted upon this child by being *93born [and] having been attacked by Rubella while a fetus” (emphasis and bracketed matter supplied).
Notwithstanding that language clearly alleging pain and suffering by the infant was set forth in her cause of action, this court, in Stewart, unequivocally stated, inter alia: "We are in agreement with Trial Term that the cause of action by the infant plaintiff for the defendant hospital’s failure to abort her mother and thus terminate her life is not cognizable at law”. The Court of Appeals affirmed that determination (Stewart v Long Is. Coll. Hosp., 30 NY2d 695, affg 35 AD2d 531).
Also, in Greenberg v Kliot (47 AD2d 765), wherein the alleged facts occurred after the State Legislature legalized abortions performed within 24 weeks from the commencement of a pregnancy (see Penal Law, § 125.05, subd 3), the cause of action on behalf of the infant recited, inter alia, that because of the failure of the defendant doctor to conduct an "Amniocentesis test” upon the mother to determine whether the unborn child would be normal upon birth, although she requested it, he was caused (1) to be born mongoloid, with internal and external abnormalities, in addition to sustaining damage to his kidneys, and (2) to be rendered sick, sore, lame and disabled, etc. In the bill of particulars it was alleged on behalf of the infant, inter alia, that he was found to be suffering from an enlarged heart, an enlarged liver and the function of only one kidney.
I also come to the conclusion that the causes of action on behalf of the parents seeking damages for pain and suffering, medical expenses incurred on behalf of the child during her life, and for loss of her services and companionship, should likewise be dismissed. Whatever the nomenclature attached to each claim for pleading purposes, be it on behalf of the parents or the child, the indisputable fact remains that each one has as its foundation an assertion that the child, born with polycystic kidney disease, an incurable and ultimately a fatal affliction, (1) should never have been conceived and (2) would never have been conceived had the defendants advised the parents after the death of a previous child at birth from the same disease, that such dreadful malady was congenital and hereditary, and therefore they should consider using means to limit or prevent future conceptions and births.
That such theme permeates throughout all four causes of action is evident from (a) the complaint, wherein it is recited in the first cause of action, and incorporated in all the remain*94ing ones, that the plaintiff mother, relying on the medical advice rendered her by the defendants, became pregnant, resulting in the birth of the child, and (b) the language employed by plaintiffs’ attorney in his affirmation opposing defendants’ motion to dismiss the complaint, in which he stated, inter alia: "Had the parents known of the substantial possibility of this happening [the child being born with poly-cystic kidney disease] they would not have conceived. * * * As a result of the birth of this diseased infant: 1) the infant sustained almost constant and untold pain and suffering [sixth cause of action]; 2) the parents suffered untold pain and anguish with the attendant responsibilities of caring for and raising a sick and diseased child, again with catastrophic results on them and the family * * * [first and fifth causes of action]; 3) the parents have incurred tremendous cost and expense for the medical care and treatment of the child [seventh cause of action]” (emphasis and matter in brackets supplied).
Thus, from a close look at exactly what it is the parents are seeking, the conclusion is inevitable that the thrust of their complaint is that they were denied an opportunity to prevent the birth of the child. Reduced further to simplest terms, the basic premise or gravamen of their claims, as well as that of the child, is that the child should never have been born. Essentially, then, they too seek recovery of damages solely because of the existence of life or wrongful life, rather than no life at all. Such suits, as indicated above, are not cognizable at law and have not met favor with the courts (cf. Williams v State of New York, 18 NY2d 481, supra; Rieck v Medical Protective Co., 64 Wis 2d 514; Ann. 22 ALR3d 1441, 1443) and, as such, they should await legislative sanction and not be accepted by judicial fiat (see Stewart v Lond Is. Coll. Hosp., supra; cf. Williams v State of New York, supra).
Furthermore, recognition of the mother’s claim seeking damages for personal injury, conscious pain and suffering and reimbursement of expenses incurred by her on behalf of the child would, in my opinion, open the way to the assertion of fraudulent claims and would cause the courts to enter a field having no sensible or just stopping point. If the defendants should respond in damages to her for their alleged failure to advise her against conceiving another child, would it not follow that the informed parent who elects to conceive and *95possibly bear a deformed child must then respond in damages to the child on the same underlying theory of "wrongful life”?
Since in my opinion the mother’s cause of action for conscious pain and suffering, etc., should be stricken, it follows that her husband’s derivative cause of action for loss of her services (fifth cause of action) should also fall. In similar vein, the husband’s claim (seventh cause of action) should also have been dismissed.
Margett and Rabin, JJ., concur with Damiani, J.; Cohalan, J. P., concurs in the denial of the defendants’ motion with respect to the sixth and part of the seventh causes of action, but otherwise dissents and votes to grant the defendants’ motion with respect to the first and fifth causes of action, with an opinion; Titone, J., dissents and votes to grant the motion to dismiss the four causes of action in question, with an opinion.
Order of the Supreme Court, Queens County, entered September 27, 1976, modified, on the law, by adding to the fourth decretal paragraph thereof, after the word "denied”, the following: "except insofar as the motion requests dismissal of those portions of the first and fifth causes of action which seek to recover damages (1) for the mental anguish or emotional distress of plaintiff Hetty B. Park and (2) for the loss of that plaintiff’s services, insofar as the claim for loss of services is based upon her mental anguish or emotional distress, and such portion of the motion is granted.” As so modified, order affirmed insofar as appealed from, without costs or disbursements.