¶ 44. (dissenting). Shannon E.T. seeks to establish his paternity of a stillborn *620child in order to bring an action for the alleged wrongful death of the child. This court permits Shannon to use Wis. Stat. § 885.23 to support his claim, but it precludes him from using Wis. Stat. § 767.45 for this purpose.
¶ 45. I agree with the court's decision to permit Shannon to establish paternity, but I disagree with the court's analysis and its affirmance of the court of appeals.
I — I
¶ 46. Wisconsin Stat. §§ 895.03 and 895.04 provide for wrongful death actions in Wisconsin. In 1967 this court interpreted Wis. Stat. § 331.03 (1963) (now § 895.03) to determine that a "viable unborn child, whose later stillbirth" was caused by a wrongful act, was a "person" within the meaning of the statute, so as to give rise to a wrongful death action "by the parents of the stillborn infant." Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 15, 148 N.W.2d 107 (1967).
¶ 47. In Kwaterski, the unborn child's parents were married. Id. at 15. As a result, the eligibility of the two parents to make a wrongful death claim was not at issue. But if the parents had not been married, some party might have challenged the eligibility or standing of the alleged father, and a determination of the man's paternity would have been necessary as part of the wrongful death suit.
¶ 48. In the present case, the court permits Shannon to use Wis. Stat. § 885.23 to support his claim ("[W]e hold that, under such circumstances, Shannon ... may bring a motion under Wis. Stat. § 885.23 to determine his parentage in the pending wrongful death action.") Majority op., ¶ 4.
¶ 49. This decision is suspect. Wisconsin Stat. § 885.23 authorizes genetic tests in a civil action (like a wrongful death or probate action) to determine the *621parentage or identity of "any child, person or corpse," whenever such evidence is relevant.1 This statute grants a party the right to obtain a genetic test, governs admissibility of the test results, and states the consequence of a party's refusal to submit to a test. By its terms, however, § 885.23 does not help a party who is not seeking to obtain a genetic test, which is likely to be the situation here.
¶ 50. Nothing in § 885.23 provides an independent basis for a party to establish paternity. The section speaks of genetic tests as evidence in an already initiated civil action in which parentage is an issue. It does not suggest that parentage may not be established by testimony or other evidence — in the absence of a genetic test — but the section does not itself authorize a party to initiate a proceeding to prove paternity or to present other kinds of evidence to prove paternity. In sum, the majority's reliance on § 885.23 as the statutory basis for a party to establish paternity is shaky at best.
HH HH
¶ 51. If the court were determined to bar recovery by an unmarried father for the wrongful death of an unborn child, I could understand a strategy in which *622the court would exclude every possible means for the father to establish paternity. But that does not appear to be the goal of the majority opinion. Thus, it is hard to fathom why the court spends many pages trying to show that a man "alleging himself to be the father of the child" cannot bring a motion under § 767.45(1) "for the purpose of determining the paternity of the child." Wis. Stat. § 767.45(1) (2003-04). The language in § 767.45(1) is clearly broad enough to cover the facts of the case.2
¶ 52. In addition, § 767.45(3) provides:
If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.
Wis. Stat. § 767.45(3). This subsection specifically approves the filing of an action before an unborn child is *623born. Under other law, if the unborn child dies, the cause of action to determine paternity survives the death. See Wis. Stat. § 895.01(l)(a).
¶ 53. Wisconsin Stat. § 767.51(3) does, of course, state that a judgment or order determining paternity shall contain certain provisions. But there need not be a "judgment or order" of paternity in the course of another proceeding such as a wrongful death action, only a determination of fact. Cf. Max T. v. Carol O., 174 Wis. 2d 352, 497 N.W.2d 740 (Ct. App. 1993). In a jury trial, the court could instruct the jury or provide a special verdict with the question of parentage answered by the court. If a judgment or order were absolutely necessary, the world would not end if the court simply stated in the judgment or order that the provisions of § 767.51(3) are inapplicable because the child was stillborn.
HH HH FH
¶ 54. Inasmuch as Shannon is given permission to establish his "parentage" of the stillborn child, it might appear frivolous to quibble over which statute he is entitled to use. But the court's decision has implications for the future.
¶ 55. First, this case appears to represent a retreat from the clear decision in Kwaterski. In 1967 this court said:
We recognize that up to 1949 no American jurisdiction permitted wrongful-death proceedings for a stillborn infant. In that year, the Minnesota court first permitted such a suit in Verkennes v. Corniea[, 38 N.W.2d 838 (Mn. 1949)]. Since the Verkennes opinion, ten jurisdictions have expressly permitted suits on facts precisely equivalent to the case at bar.
*624Kwaterski, 34 Wis. 2d at 18.3 The unanimous court went on to assert that there were at least four basic reasons to support recovery:
(1) A viable child is capable of independent existence and therefore should be recognized as a separate entity entitled to the protection of the law of torts. In Puhl [v. Milwaukee Automobile Insurance Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959)] we have already recognized that an unborn child is a separate legal entity.
(2) As stated in Puhl, the law recognizes an unborn child by protecting its property rights and rights of inheritance and also protects the unborn child against the crimes of others.
(3) If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Denying a right of action for negligent acts which produce a stillbirth leads to some very incongruous results.... [A]n un*625born child who was badly injured hy the tortious acts of another, but who was born alive, could recover while an unborn child, who was more severely injured and died as the result of the tortious acts of another, could recover nothing.
(4) A family who loses a child before it is born suffers a very grievous loss for which money damages are really inadequate. It is only equitable that a family should receive some compensation from a tort-feasor whose negligence caused the loss of a child.
Kwaterski, 34 Wis. 2d at 19-20.
¶ 56. Six years after Kwaterski, the United States Supreme Court held that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." Roe v. Wade, 410 U.S. 113, 158 (1973). Although this part of the Roe decision was not unexpected, the Court went on unnecessarily to criticize decisions like Kwaterski:
In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. ... In short, the unborn have never been recognized in the law as persons in the whole sense.
Roe, 410 U.S. at 162.
¶ 57. Ten years ago in State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997), this court concluded that the legislature did not intend to include a fetus within the Children's Code definition of "child," and thus a circuit court lacked jurisdiction to *626confine a pregnant, drug-consuming mother so that the court could protect the fetus. Id. at 137-38.
¶ 58. In the present case, the circuit court cited Angela M.W. as one reason for denying Shannon the right to proceed under Wis. Stat. § 767.45. The court of appeals discussed both § 767.45 and Wis. Stat. § 885.23 and denied Shannon the right to proceed under § 767.45 and avoided making a clear determination under § 885.23.
¶ 59. What is obvious is that our courts are reluctant to interpret the word "child" in Wis. Stat. § 767.45(1) to include a "stillborn infant." See Kwaterski, 34 Wis. 2d at 15. This timidity is not justified and comes very close to repudiating Kwaterski, which has been part of Wisconsin law for four decades.
¶ 60. Second, in relying entirely on Wis. Stat. § 885.23 as the statute under which to proceed, the court is needlessly confusing litigants. Once again, this statute by its terms does not provide a separate vehicle for establishing paternity.
¶ 61. Wisconsin Stat. § 767.45(1) was created by § 25, Chapter 352, Laws of 1979, which took effect July 1, 1981. Section 767.45(1) substantially increased the number of persons authorized to establish paternity and should, therefore, be viewed as codifying broad authority to effect this objective.
¶ 62. Now, however, when the court precludes the use of the broadly worded Wis. Stat. § 767.45, it undermines the use of anything in Chapter 767 to establish paternity on these facts. This is very troublesome because the statute the court ultimately relies on, Wis. Stat. § 885.23, is (1) explicitly linked to Chapter 767; and (2) applies only to genetic tests. In other words, the court relies on a statute that was designed to facilitate one means of proving paternity, not authorize that end. *627It relies on a statute that will be viewed as inapplicable when a litigant seeks to prove paternity by some means different from a genetic test.
¶ 63. If the court is determined to preclude the use of Wis. Stat. § 767.45 to establish the paternity of a stillborn child, it ought to give litigants a clear explanation of how to establish paternity in a case where the litigant is not seeking a genetic test. I would rely on Wis. Stat. § 806.04 as supplementary authority for an independent action and Wis. Stat. § (Rule) 904.02 as the controlling evidentiary rule.
¶ 64. Because I see the court's decision as creating apprehension about the future of Kwaterski, as well as uncertainty and confusion, I respectfully dissent.
Wisconsin Stat. § 885.23 reads:
Genetic tests in civil actions. Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in s. 767.84. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.
Wisconsin Stat. § 767.45(1) provides in relevant part:
The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41(1):
(a) The child.
(b) The child's natural mother.
(c) Unless s. 767.62(1) applies, a man presumed to be the child's father under s. 891.405 or 891.41(1).
(d) A man alleged or alleging himself to be the father of the child. (Emphasis added.)
Wisconsin Stat. § 767.45 was converted by 2005 Wis. Act 443 to Wis. Stat. § 767.80 as part of a comprehensive revision of chapter 767, effective January 1, 2007.
The court cited State v. Sherman, 198 A.2d 71 (Md. 1964); Fowler v. Woodward, 138 S.E.2d 412 (S.C. 1964); Gorke v. Le Clerc, 181 A.2d 448 (Conn. 1962); Hale v. Manion, 368 P.2d 1 (Kan. 1962); Stidam v. Ashmore, 167 N.E.2d 106 (Ohio Ct. App. 1959); Poliquin v. MacDonald, 135 A.2d 249 (N.H. 1957); Worgan v. Greggo & Ferrara, Inc., 128 A.2d 557 (Del. 1956); Mitchell v. Cough, 285 S.W.2d 901 (Ky. 1955); Rainey v. Horn, 72 So.2d 434 (Miss. 1954); Valence v. La. Power & Light Co., 50 So.2d 847 (La. Ct. App. 1951). See Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 18-19, 148 N.W.2d 107 (1967).
In 1995 the West Virginia Supreme Court of Appeals determined that the term "person" used in wrongful death statutes encompasses a nonviable unborn child. Farley v. Sartin, 466 S.E.2d 522 (W.Va. 1995). The court cited one decision prior to Verkennes v. Corniea, 38 N.W.2d 838 (Mn. 1949), namely, Bonbrest v. Kotz, 65 F. Supp. 138 (D.C. Cir. 1946), and collected multiple additional cases after Kwaterski.