(dissenting in part, concurring in part).
Being unable to agree with the statutory construction arrived at in the majority opinion, I respectfully dissent.
In so doing, I am not unmindful that a substantial majority of the federal judges who have considered the issue have determined that an unborn child was a dependent child within the contemplation of section 402(a) (10) of the Social Security Act.1 I am also not un*159mindful that persuasive sociopolitical arguments can be, and have been, advanced in favor of distributing AFDC benefits to the mother of an unborn child who would qualify for such benefits if the child were living apart from the womb. To dispose of the latter matter first, I do not deem judicial concepts of what is good policy to be helpful in statutory construction when there is no evidence that the enacting legislative body gave any consideration to the policy argument.
Returning to the first matter, while I am respectful of the analyses afforded the issue by my federal brethren, notwithstanding that cases subsequent to the initial ones have certain manifestations of stare decisis snowballing, I cannot conceive that the Congress in enacting and amending the Social Security Act used language so loosely as to mean that a woman carrying an unborn child but with no living children was a family with a dependent child within the meaning of 42 U.S.C. § 602(a) (10) nor that the unborn child while in such status is living with his or her prospective mother within the meaning of 42 U.S.C. § 606(a).
The legal status of the unborn child, recently the object of attention in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), is not a new problem to the judiciary. At least as early as 1695, although the Common Bench and the King’s Bench had unanimously held that a posthumously born child created a gap in the seisin, a thing abhorrent to the common law, the House of Lords with Baron Turton of the Court of Exchequer present held that the child could take a remainder interest in property. Reeve v. Long, 3 Lev. 408 (1695).2
The legal fiction in the area of property descent that a child en ventre sa mere is supposed to be born appears to be widely accepted in American jurisprudence. Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743, 744 (1967). Barnett v. Pinkston, 238 Ala. 327, 191 So. 371, 375 (1939).
However, we are not in the present case dealing with the common law, which is not only supposed to be but has been developed by the judiciary, but instead with a matter of statutory construction as to which, as I conceive it, the function of the judiciary is to determine what the legislative body intended to encompass in its enactment.3 Legal fictions are not a primary canon of statutory construction.
It appears clear to me from an overall examination of Title IV that Congress did not intend unborn children to be entitled to benefits. In Section 606(a) itself, “dependent child” is defined as a “needy child,” a phrase not particularly apt in describing a fetus. The definition then goes on to require that the child must have “been deprived of parental support or care” by reason of the absence from the home “of a parent.” Neither mother nor father is “a parent” before a child is born. If the fetus is aborted or stillborn, they do not become parents.
Carleson v. Remillard, 406 U.S. 598, 603, 92 S.Ct. 1932, 1935, 32 L.Ed.2d 352 (1972), held that “the presence in the home of the parent who has the legal obligation to support is the key to the AFDC program,” (emphasis supplied), citing King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and Lewis v. Martin, 397 U.S. 552, 559, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970). I am *160unaware of any requirement for a father to support a child before the child is born. Even though a father may be required to pay the reasonable expenses of the mother during pregnancy this is not an obligation to the unborn child as a separate member of the family.
Other provisions of the Act lead to the same conclusion. Section 602(a) (17) speaks of “a child born out of wedlock” in the context of a requirement that the state provide:
“(A) for the development and implementation of a program under which the State agency will undertake'—
(i) in the case of a child bom out of wedlock who is receiving aid to families with dependent children, to establish the paternity of such child and secure support for him .....” (Emphasis supplied.)
If Congress had deemed that eligibility had commenced before the child was born, it should have said “conceived” instead of “born.” The language used certainly does not fit an unborn child out of wedlock, as to which there might also be reason to establish paternity and to secure support.
Many other expressions using the word “child” make sense only if that term is limited to born children. The following portions of the Act are illustrative :
(1) 42 U.S.C. § 601 states that the purpose of the AFDC program is to encourage care of dependent children in their own homes or in the homes of relatives.
(2) Sections 602(a)(7) and (8) require consideration of a child’s income and resources in establishing the amount of assistance.
(3) Section 602(a) (11) requires notice to law enforcement officials when the State furnishes AFDC to a “child who has been deserted or abandoned by a parent.”
(4) Sections 602(a) (13) thru (15) require development of a plan of social services for the child and his relatives.
(5) Section 602(a) (16) requires state investigations to determine whether AFDC children are living in suitable homes.
Also, as I have already indicated, I have difficulty in envisioning the concept of a one-person family. For a further discussion of the statute, see Parks v. Harden, 354 F.Supp. 620, 623-625 (N.D.Ga.1973).
I find no reason for including a category which is not present in legislation by virtue of the fact that HEW permitted aid to unborn children at the option of the states. Particularly, I would find no basis in this procedure for an inference that Congress intended the coverage of fetuses to be mandatory.4 Even if we were to assume that Congress was aware of the administratively devised option extended to the states and thereupon further assumed that the legislation enacted by prior sessions of the Congress did encompass benefits for the unborn child, this, of course, would not mean that this was what was intended at the time the legislation was enacted. While osmotic amendment of statutes by administrative procedure might shorten the legislative processes, I would scarcely deem it presently to be a part of our governmental scheme. However, to believe that Congress made this assumption has no historical basis. That Congress in several decades has not dealt specifically in the present context with the status of the unborn child is as consistent with the belief that the fetus was not eligible as otherwise, for it is indicated in the cases that at least two-thirds of the jurisdictions during the entire period of the Act have not deemed inclusion to be mandatory. Congress may well have agreed with these jurisdictions in understanding the proper construction of the existing legislation as not requiring payment of benefits in the case of the unborn child.
*161When the 92nd Congress did address itself expressly to the problem, the House Committee Report5 indicated that the “committee wants to make clear that an unborn child would not be included in the definition of a child. This will preclude the practice, now used in the AFDC program in some States, of finding that an unborn child does meet the definition, thereby establishing a ‘family’ even before the child is born.” (Emphasis supplied.)
The language of the committee report indicates to me that the committee intended to “make clear” what the law was intended to mean, despite a contrary administrative practice.
The Senate Report, No. 92-1230, p. 467, 92nd Cong., quoted the same two sentences from the House Report with approval and added: “The committee bill, like the House bill, would provide that only children who have actually been born would be eligible for Aid to Families with Dependent Children.”
While both houses passed bills to this effect, because of other differences on proposed revisions of Title IV neither version became law. There was significantly, however, no disagreement on the aspect of the legislation here involved.
The cases reaching the result that the majority did in the present case rely to a considerable extent on King v. Smith, supra; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); and Carleson v. Remillard, supra. However, I do not consider those cases applicable here. As the Supreme Court observed in the later case of New York State Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2517, 37 L.Ed.2d 688 (1973), in referring to the three cases mentioned above: “In those cases it was clear that state law excluded people from AFDC benefits whom the Social Security Act expressly provided would be eligible.” Whatever arguments may be made for the majority position, one is not that unborn children are expressly made eligible.
In sum, no matter how laudable the motivation or the object to be achieved may be, the result reached by the májority of the courts passing on the instant question appears to me so to smack of judicial legislation as to require that laudability of objective be overridden in the interest of the proper scope of the judicial function.
I am unaware of any court decision which has given serious consideration to a resolution of the present issue on an equal protection basis and I therefore find no necessity for addressing that contention.
I do concur in that part of the opinion which denies retroactivity but, for the reasons stated herein, dissent from the remainder of the opinion.
. The score is placed in Alcala v. Burns, 494 F.2d 743 (8th Cir. 1974), as two courts of appeals (including the Alcala court) and twelve district courts in favor of the result reached by the majority opinion of this court, with three district court decisions to the contrary.
. Students of the late Professor W. Barton Leach will recall that this case precipitated the publication of Langdel Lyrics of 1938 in which the following effort of class member Donald 6. McNeil appeared :
“Let’s fill the cups to Baron Turton Who, though the law was clear and certain Would rather help a little foetus Than round out Charlie Fearne’s dull treatise.”
. Even in the case of property descent, the legislatures have been capable of making it clear when it was their intention to do so that an unborn child should have rights. Thus, in Ill.Rev.Statutes, Ch. 3, Sec. 13 it is provided, “A posthumous child of a decedent shall receive the same share of his ancestor’s intestate estate as if he had been born in his father’s life time.”
. For the historical development of the HEW practice, see Parks v. Harden, supra.
. H.Rep. 92-231, p. 184, reprinted in 3 U.S.Code, Cong, and Admin.News 92nd Cong., 2d Sess., 1972, p. 5170.