Dissenting Opinion by
Mr. Justice Bell :The question involved is an important but very narrow one. May a child recover in tort for an alleged prenatal injury one month after she was conceived, which allegedly caused her to be born a Mongoloid?
Plaintiffs filed a complaint containing four counts.* In the third count, Rebecca, a Mongoloid daughter, born November 11, 1958, sued defendant, alleging (a) he negligently ran into the rear of her mother’s automobile, and (b) that at the time of the accident plaintiff’s mother was one month pregnant with plaintiff and (c) “as a result of the accident plaintiff was born a Mongoloid child.” Plaintiff claimed $100,000 for the pain, suffering and humiliation, as well as for *275medical expenses and loss of earnings and earning power.
The lower Court sustained preliminary objections to plaintiffs’ complaint and entered judgment in favor of defendant, holding that Rebecca had no legal cause of action. From that judgment Rebecca has appealed.
The question raised in this appeal was clearly, expressly and specifically answered — adversely to plaintiff — in Berlin v. J. C. Penney Company, Inc., 339 Pa. 547, 16 A. 2d 28 (1940). In that case the learned Chief Justice Schaffer, speaking for a unanimous Court, said (page 548) : “The question here involved is whether an infant can maintain an action for injuries sustained while en ventre sa mere. The court below held that he could not. . . .
“At early common law* the mother and child until birth were considered as one, the child was not deemed to have an existence independent of the parent.** As a result, an injury to an unborn child was looked upon as an injury to the mother. It is true that the unity of mother and child has been relaxed in modern times and that today for some beneficial purposes a child en ventre sa mere is considered as born. Hoioever, there is no warrant for holding, independent of a statute, that a cause of action for prenatal injuries to a child accrues at birth: 4 Restatement, Torts, §869.” With this statement as to unintentional prenatal injuries, I wholeheartedly agree.
The Restatement in §869 is as follows: “A person who negligently causes harm to an unborn child is not liable to such child for the harm. A person desig*276nated by statute to maintain an action for causing death can not maintain an action for a negligent act committed before the birth of a child which causes the death of the child either before or after birth.”
“Comment: a. The rule stated in this Section is applicable only to unintended harms to the mother or to the child. It prevents recovery by the child after its birth for any of the consequences of negligent conduct before birth. . . .”
The Berlin v. J. C. Penney Company, Inc. decision is supported (a) by stare decisis, (b) as well as by the Restatement and (c) we believe by the better reasoning, and should not be overruled. It is a fairly recent decision (1940) and has been unquestioned in this Court for the last 20 years. Justice Bok has stated the number of jurisdictions which allow recovery either by decision or statute for some* prenatal injuries. There is no doubt that this is the modern trend. Pennsylvania has always considered that the decision of a Court of a sister state is entitled to weight but we make and follow our own decisions.
The record does not show, nor have we been informed of any development in modern medicine in the last 20 years which would justify any change in our decisional law. The majority opinion has gone outside the record to state that medical opinion has altered since the leading case of Dietrich v. Northampton, 138 Mass. 14 (1884) and “the real catalyst of the *277problem is the current state of medical knowledge on the point of the separate existence of a foetus”. In my judgment that is not the real and certainly it is not the sole important question. I regret that the majority did not conduct its off-the-record study further to determine (1) whether medical knowledge and science has changed on the point here involved in the last 20 years, and (2) whether trauma can cause an unborn child to become a Mongoloid. If such a study had been made, the majority would have discovered (1) that there has been no change on this point in medical knowledge and science in the last 20 years, and (2) that leading medical authorities are agreed (a) that a Mongoloid child is a Mongoloid from the time of its conception and results from the genes of the parents, and (b) that trauma cannot cause a child to become or be born a Mongoloid.*
There are additional reasons to support this dissenting opinion, although none are necessary. The next step will be the allowance of a suit by a baby against its mother and/or father (either directly or by joinder as an additional defendant) for shock to its nervous system or an allergy or feeble-mindedness or a malformation and for every conceivable defect or disease as the alleged result of negligently or recklessly driving an automobile (as the young frequently do), or against its mother for nervousness, shock and every imaginable injury or disease resulting from her playing golf or going surf bathing until shortly (often one week, occasionally one day) before its birth, or eating a bad oyster or deleterious or poisoned food. The next step will be recoveries against restaurants or clubs for serving its mother bad or poisoned food, or against its mother’s obstetrician or doctor for failing to properly *278or prudently take care of the unborn child and/or failure to use due care in advising its mother on the subject of prenatal care.
Negligence cases are swamping our Courts; families are drawing farther and farther apart — why create and greatly increase litigation and give new causes for family discord? Furthermore, in claims for shock, nervous disorders, allergies, malformations, feeble-mindedness and many other real or imaginary injuries or illnesses, whether the alleged negligence of the defendant was the proximate cause of the prenatal injury, or illness or mental or physical defect, or what the physical, mental or nervous condition of the child was at the time of the accident and while en ventre sa mere, would, in most instances, amount to sheer speculation. To allow such a recovery will not only create and greatly increase litigation but will open wide the door to conjectural and fictitious claims.
For each and all of these reasons, I dissent.
In the first count plaintiff Nancy D. Sinkler claimed in her own right $100,000 damages for lacerations and contusions and shock to her nervous system which resulted in the birth of a Mongoloid child, Rebecca, as well as for repairs to her 1952 Chevrolet coupe. In the second count Emilie, daughter of plaintiffs Charles Sinkler and Nancy D. Sinkler, who was a passenger in her mother’s automobile, claimed damages for lacerations and contusions, as well as shock to her nervous system. In the fourth count the father of the minors claimed damages in the sum of $100,000 for money which he spent or may be obliged to spend in the future for medicine, X-ray, nursing and hospital care.
Italics throughout, ours.
We note, parenthetically, that for centuries before the medical profession decided this question, the Church debated it in a slightly different form — has an unborn child a soul, and, if so, When?
For example, New York holds an unborn child is viable after 28 weeks; Pennsylvania after 16 weeks; Michigan allows a baby en ventre sa mere to bring suit for the loss of its father (La Blue v. Speaker, 358 Mich. 558 (1960)) ; three States allow a child to bring suit for prenatal injuries suffered at any time after it was conceived (Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504; Bennett v. Hymers, 101 N. H. 183; Kelly v. Gregory, 282 App. Div. N. Y. 542).
In addition to leading medical authorities, see Puhl v. Milwaukee Automobile Insurance Co., 8 Wis. 2d 343 (1960).