(dissenting).
[¶ 16] I would hold that SDCL 21-5-1 does not authorize a claim for the wrongful death of a nonviable fetus. The language of SDCL 21-5-1 provides:
Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the administrator or executor of the estate of such person as such administrator or executor, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such administrator or executor, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child. (Emphasis added.)
[¶ 17] It is important to note the phrase “including an unborn child” modifies the word “person.” The grammatical position of this clause in the sentence broadens the term “person,” expanding the class of “persons” eligible to assert a wrongful death claim. However, the words “unborn child” are not defined anywhere within SDCL ch. 21-5.1
[¶ 18] Noting the tumultuous controversy over the definition of “unborn child,” the *793absence of a definition renders the clause ambiguous. Accordingly, a court should consider at what point of gestation an unborn child becomes a “person,” relying on related chapters of South Dakota Codified Laws, South Dakota case law, and precedent from other jurisdictions. See Sander v. Geib, Elston, Frost Professional. Ass’n, 506 N.W.2d 107, 125 (S.D.1993) (interpreting statutory language by reviewing other enactments relating to the same subject); John Morrell & Co. v. Dept. of Labor, 460 N.W.2d 141, 143 (S.D.1990) (court may look to other jurisdictions for guidance on cases of first impression).
[¶ 19] Neither chapters of the South Dakota Codified Laws on vital records (SDCL ch. 34-25), nor abortion (SDCL eh. 34-23A), define “unborn child.” Instead, they specifically set forth mandates to explain the meaning of the term within the statutory scheme. Many legislatures defined and used terms such as “fetus”2 or “gestational age of the unborn child” in their wrongful death provisions to alleviate the conflict we now face. Nevertheless, the question of what constitutes an “unborn child” within the larger classification of “person” is not defined under this statute.
[¶ 20] The Illinois Legislature overcame this definitional burden by providing a meaning for the class of unborn persons covered by that jurisdiction’s wrongful death statute. Illinois is the only jurisdiction which statutorily recognizes a wrongful death action for a nonviable fetus. The language of the Illinois statute states:
The state of gestation or development of a human being when an injury is caused, when injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.
Ill.Rev.Stat. 1989, ch. 70, par. 2.2.
[¶ 21] The Illinois Court of Appeals in Smith v. Mercy Hosp. and Medical Center, *794203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990), interpreted this statute as “creat[ing] a cause of action for the wrongful death of a fetus injured at any time after conception, thereby clearly establishing the status of the unborn child, for the purposes of the Act, as that of a ‘person.’ ” Id. at 471, 148 Ill.Dec. at 571, 560 N.E.2d at 1168. The Smith court additionally held that viability of the fetus need not be established to maintain or carry the burden for recovery.3 Id. at 478-80, 148 Ill.Dec. at 576, 560 N.E.2d at 1173.
[¶ 22] Evolving from case law, Georgia also recognizes a wrongful death action for a nonviable fetus. In Porter v. Lassiter, 91 Ga.App. 712, 716-17, 87 S.E.2d 100, 103 (1955), a Georgia court of appeals recognized that a cause of action exists after the fetus has “quickened,” or movement occurs within the womb. All remaining jurisdictions sustaining the cause of action for previable fetuses, condition recovery on “live birth.” See Nancy E. Field, Evolving Conceptualizations of Property: A Proposal to De-Commercialize the Value of Fetal Tissue, 99 Yale Law Journal, 169, 172-3 (1989) (citing Danos v. St. Pierre, 402 So.2d 633, 635 (La.1981); Endresz v. Friedberg, 24 N.Y.2d 478, 485, 248 N.E.2d 901, 904, 301 N.Y.S.2d 65, 70 (1969)).
[¶ 23] The overwhelming majority of jurisdictions, however, reject the existence of a wrongful death action for a fetus prior to viability. Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993) (no cause of action for a 13-week fetus); Ferguson v. District of Columbia, 629 A.2d 15 (D.C.App.1993) (no cause of action for a non-viable fetus); Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990) (no cause of action for death of a 12-week fetus); Fryover v. Forbes, 433 Mich. 878, 446 N.W.2d 292 (1989) (no cause of action for a 12-week fetus); Rambo v. Lawson, 799 S.W.2d 62 (Mo.1990) (no cause of action for a 12-week fetus); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980) (no cause of action for a 12-week fetus); Guyer v. Hugo Pub. Co., 830 P.2d 1393 (Okl.App.1991) (no cause of action for a 14-week fetus); Coveleski v. Bubnis, 535 Pa. 166, 170-72, 634 A.2d 608, 610 (1993) (no cause of action for an 8-week fetus); Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991) (no cause of action for a 5-week fetus); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958) (no cause of action for a 5-week fetus).
Eli 24] “Viability is that stage of prenatal development at which the fetus [is] capable of independent existence if removed from its mother’s womb.” McCaskill v. Housing Authority, 419 Pa.Super. 313, 615 A.2d 382, 384 (1992) (citations omitted). The United States Supreme Court, in Planned Parenthood v. Casey, 505 U.S. 833, 857-60, 112 S.Ct. 2791, 2810-11, 120 L.Ed.2d 674 (1992), held that viability now occurs between 23-24 weeks of gestation, a conclusion well supported by medical literature.
[¶ 25] Despite similar language, none of the statutes in the majority of jurisdictions use the term “unborn child” as does South Dakota’s. Instead, those jurisdictions deny the action based on interpreting the word “person,” “minor child,” or “one.” See Gentry, 613 So.2d 1241; Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993); Guyer, 830 P.2d 1393.
[¶ 26] In interpreting the language of South Dakota’s statute, I agree with the comments of the Alabama Supreme Court in Lollar when it spoke of the differences between various statutory schemes:
The constructions placed by the courts in our sister states upon wrongful death legislation in their respective jurisdictions counsel caution in our consideration of the question whether a fetus that has never attained viability is a “minor child” within *795the contemplation of [the Alabama Wrongful Death Act, AlaCode 1975, § 6-5-391].... Without a clearer expression of legislative intent, we are reluctant to hold that § 6-5-391 creates a cause of action for the wrongful death of a fetus that has never attained viability.
613 So.2d at 1252-53.
[¶ 27] The heart of the issue, in my opinion, is whether an action for wrongful death can stand where no sustainable life exists at the time of the negligent act. In considering this question, the District of Columbia Court of Appeals, in Ferguson, 629 A.2d at 17, stated:
The concept underlying our survival statute is that the representative is merely bringing a lawsuit that decedent could have brought had he or she not died. Where the fetus emerges from the mother without the developmental capacity to survive, it would contradict the theory of a survival action to provide a cause of action to the representative of the fetus. Absent clear indication of contrary legislative intent, it would be anomalous to view an action as one that could have been brought by the fetus had the fetus not died when the fetus had never developed the capacity to survive in the first place.
[¶ 28] Wrongful death statutes are remedial in nature, created with the objective to provide a cause of action against those whose tortious conduct causes the death of another. See Farley v. Mount Marty Hosp. Ass’n, 387 N.W.2d 42 (S.D.1986). However, as the Ferguson court reasoned, it is illogical to recognize a cause of action for wrongful death where no sustainable life initially exists. 629 A.2d at 17. It is also inconceivable, absent specific legislative direction, how this court can extend a cause of action for wrongful death of a nonviable fetus, yet protect medical practitioners performing legal abortions from tort liability. SDCL ch. 32-23A.
[¶29] The parameters of South Dakota’s wrongful death statute with regard to the unborn have been previously addressed in South Dakota. In Farley, this court held that a viable unborn child was a “person” within the meaning of SDCL 21-5-1.4 Id. at 44. A wrongful death action was cognizable on the viable fetus’ behalf. Id. Although the cause of action in Farley occurred prior to the 1984 amendment to SDCL 21-5-1, adding the clause “including an unborn child,” the court referred to that amendment and supporting case law in finding a cause of action for “viable” unborn children.
[¶ 30] Wiersmas argue the statutory phrase “including an unborn child” should not be limited to “viability.” However, without specific guidance from the legislature defining “unborn child,” I would not sway from the majority of jurisdictions’ rationale which limit the cause of action to that standard. I would limit a cause of action for wrongful death to a viable unborn “person”5 and answer the Certified Question in the negative.
. Subsequent to the filing of this case, the 1995 legislature adopted a definition of "unborn child,” SDCL 22-l-2(50A), to be used in conjunction with fetal assault and homicide statutes. SDCL 22-16-1.1; -15 and -20; 22-18-1.2, and -1.3. That definition provides: "'Unborn child,’ an individual organism of the species homo sa-piens from fertilization until live birth.”
Still, this definition cannot be applied retroactively as an indication of legislative intent under South Dakota's wrongful death statute at issue. First, the newly enacted assault statutes, SDCL 22-18-1.2 and -1.3, specifically require the "unborn child” to be “born alive" as an element of the offense. A fetus is viable if it is able to be "born alive.” Unless this condition exists, the statute presumably is inapplicable. The language of those two provisions is as follows:
SDCL 22-18-1.2 provides: "Any person who assaults a pregnant woman and inflicts bodily injury on an unborn child who is subsequently bom alive is guilty of simple assault. Bodily injury does not include the inducement of the unborn child's birth when done for bona fide medical purposes." (Emphasis added.)
SDCL 22-18-1.3 provides: "Any person who assaults a pregnant woman and inflicts great *793serious bodily injury on an unborn child who is subsequently bom alive is guilty of aggravated assault.” (Emphasis added.)
Next, the 1995 fetal homicide statutes, SDCL 22-16-1.1, -15 and -20, involve some level of criminal intent or recklessness, which is markedly absent from the negligence-based wrongful death provision. The language of these statutes is as follows:
SDCL 22-16-1.1 provides: "Homicide is fetal homicide if a person knew, or reasonably should have known, that a woman bearing an unborn child was pregnant and caused the death of the unborn child without lawful justification and if the person:
(1) Intended to cause the death of or do serious bodily injury to the pregnant woman or the unborn child; or
(2) Knew that the acts taken would cause death or serious bodily injury to the pregnant woman or her unborn child; or
(3) When perpetrated without any design to effect death by a person engaged in the commission of any felony.
Fetal homicide is a Class B felony.
This section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.”
SDCL 22-16-15 provides: "Homicide is manslaughter in the first degree when perpetrated:
(1)Without a design to effect death by a person while engaged in the commission of a misdemeanor involving moral turpitude;
(2) Without a design to effect death, and in a heat of passion, but in a cruel and unusual manner;
(3) Without a design to effect death, but by means of a dangerous weapon;
(4) Unnecessarily, either while resisting an attempt by the person killed to commit a crime or after such attempt shall have failed;
(5) Unnecessarily, either while resisting an attempt by a pregnant woman to either commit a crime or after such attempt shall have failed.
Manslaughter in the first degree is a Class 1 felony.”
SDCL 22-16-20 provides: "Any reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony."
. Although neither chapter defines the term “fetus,” the meaning can be ascertained by related statutory definitions or via medical parlance. SDCL 32-25-1.1 defines “fetal death” as “death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy[.]” Stedman’s Medical Dictionary defines "fetus” as “the product of conception from the end of the eighth week to the moment of birth." Stedman's Medical Dictionary, 516 (23rd ed. 1976).
. The majority cites to the Illinois case of People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189 (1991). In tins criminal case, the court was ruling on a claim that the criminal statute under which defendant was being prosecuted was unconstitutional in that it violated the equal protection clause. The Ford court, in upholding the constitutionality of this statute, pointed out that the legislature had defined in the criminal statute that an unborn child is "any individual of the human species from fertilization until birth." 163 Ill.Dec. at 775, 581 N.E.2d at 1198 (citing Ill.Rev.Stat. 1987, ch. 38, par. 9-1.2(b)(1)). The Ford court further went on to state that this definition erased any viability requirement in the criminal arena. In South Dakota, the legislature has also eliminated viability in the criminal arena. On the other hand, viability was not eliminated in the South Dakota wrongful death statutes.
. The certified question in Farley was: "Did SDCL 21-5-1, prior to its 1984 amendment, provide a cause of action for the wrongful death of a viable unborn child?” 387 N.W.2d at 43.
. It is important to note that Mother still may have numerous causes of action for the loss she personally sustained from this ordeal.