dissenting: The majority concludes that because parental immunity has been abrogated and we *291previously have recognized that a child born alive may maintain a cause of action against a third party for prenatal injuries, “it follows that a child born alive has a cause of action against his or her mother for the mother’s negligence that caused injury to the child when in útero.” In our view, the majority has failed to fully appreciate the extent of the intrusion into the privacy and physical autonomy rights of women—policy concerns which are central to this issue—and has ignored the profound implications that such a rule of law holds for all women in this State who are, or may become, pregnant.
The majority’s willingness to extend liability to the mother rests largely upon an extension of third-party liability. Admittedly, the step from third party liability to maternal liability follows as a matter of logic. However, whether to subject the day-to-day decisions and acts of a woman concerning her pregnancy to judicial scrutiny is not properly a question to be decided by a mechanical application of logic. Rather, “[i]t is the policy of the law which must establish a reasonable limitation on liability,” Wallace v. Wallace, 120 N.H. 675, 677, 421 A.2d 134, 136 (1980) (relying on policy grounds rather than logic and science in deciding not to extend a cause of action for wrongful death to a nonviable fetus), and the policy “must be distilled from the relevant factors involved upon an inquiry into what is fair and just.” England v. Tasker, 129 N.H. 467, 470, 529 A.2d 938, 940 (1987) (quotation omitted).
Virtually all jurisdictions, ours included, allow a child born alive to recover for injuries sustained as a viable fetus caused by the negligence of a third party. The cause of action is based upon the recognition that the child has a “right, to the fullest extent possible, to be born with a sound mind and body.” Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability for Prenatal Injuries to her Child Born Alive, 21 San Diego L. Rev. 325 (March 1984). While we recognize the validity of this right and its significance as one factor in the policy inquiry, we are deeply concerned that the assertion of such a right against the mother, as compared to a third party, will have vastly different consequences.
Holding a third party liable for negligently inflicted prenatal injuries furthers the child’s legal right to begin life free of injuries caused by the negligence of others, but does not significantly restrict the behavior or actions of the defendant beyond the limitations already imposed by the duty owed to the world at large by long standing rules of tort law. Third parties, despite this recently imposed duty to the fetus, are able to continue to act much as they did before the cause of action was recognized. Imposing the same duty on the *292mother, however, will constrain her behavior and affirmatively mandate acts which have traditionally rested solely in the province of the individual free from judicial scrutiny, guided, until now, by the mother’s sense of personal responsibility and moral, not legal, obligation to her fetus.
Although it is true that the law may impose liability based on the special relationship between certain parties, we can think of no existing legal duty analogous to this one, which could govern such details of a woman’s life as her diet, sleep, exercise, sexual activity, work and living environment, and, of course, nearly every aspect of her health care. Imposing a legal duty upon a mother to her fetus creates a legal relationship which is irrefutably unique. “No other plaintiff depends exclusively on any other defendant for everything necessary for life itself----As opposed to the third-party defendant, it is the mother’s every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus. That this is so is not a pregnant woman’s fault: it is a fact of life.” Stallman v. Youngquist, 125 Ill. 2d 267, 278-79, 531 N.E.2d 355, 360 (1988).
The majority discounts the problems associated with legally recognizing a mother’s duty to her fetus and assures, that by subjecting the relationship to an “appropriate duty of care” and by allowing the factfinder to make a determination of negligence, no significant rights will be deprived. This conclusion begs the question: What will be the judicially defined standard of conduct for a pregnant woman? Indeed, is it possible to subject a woman’s judgment, action, and behavior as they relate to the well-being of her fetus to a judicial determination of reasonableness in a manner that is consistent and free from arbitrary results? We have serious doubts.
While we are less troubled with the role of the factfinder in assessing foreseeability, despite the myriad circumstances and complexities of the factors at play, we question whether the nature and scope of the duty can be articulated with consistency and predictability by the courts. Presumably, the determination would “vary according to whether a pregnancy was planned or unplanned, to whether a woman knew she was pregnant soon after conception or only knew after several months, to whether she had the financial resources with which to access the best possible medical care available or was unable to get any prenatal care.” Youngquist, 125 Ill. 2d at 279, 531 N.E.2d at 360. In addition to these general circumstances, the court would have to consider the more specific day-to-day decisions of the mother and the detailed circumstances surrounding her pregnancy. *293Moreover, because “[t]he extent of duty can seldom, if ever, be determined until all the facts of a transaction in its environmental setting are known, and some appropriate rule of law is found available,” the question of duty is, unfortunately, one of hindsight. Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1418 (1961). Such after-the-fact judicial scrutiny of the subtle and complicated factors affecting a woman’s pregnancy may make life for women who are pregnant or who are merely contemplating pregnancy intolerable. For these reasons, we are convinced that the best course is to allow the duty of a mother to her fetus to remain a moral obligation which, for the vast majority of women, is already freely recognized and respected without compulsion by law.
This issue is difficult, and we have not reached our conclusion with ease or without doubts. The countervailing concerns for the child’s right to be born free of negligently inflicted prenatal injuries and his or her right to recover for such harm are significant. We are also aware that a fetus may sustain injuries from the negligent acts of its mother that may not directly implicate the unique relationship between mother and fetus. We are concerned, however, that a rule of law attempting to distinguish between acts of the mother that involve privacy interests and those that may be considered common torts would result in arbitrary line-drawing resulting in inconsistent verdicts. On this point, we find the cases dealing with partial abrogation of parental immunity excepting for acts involving “the exercise of parental authority and discretion” to be closely analogous and instructive. See Hartman by Hartman v. Hartman, 821 S.W.2d 852, 856-57 (Mo. 1991) (en banc) (rejecting parental immunity exceptions because of arbitrary distinctions between acts unique to parenting and those that are not).
We conclude that if a cause of action based upon public policy can be created with sufficient safeguards protecting the mother’s privacy interests, it should be fashioned by the legislature. Until then, as a matter of both judicial and public policy, we would decline to recognize a cause of action by a child born alive against his or her mother for the mother’s negligent acts resulting in prenatal injury.