specially concurs as to Part II and dissents as to Parts I and III of the decision:
I agree with the conclusion reached in Part II of the majority opinion that the parents may maintain an action for wrongful birth. I do not subscribe, however, to the majority’s baffling statements characterizing the defendants’ arguments opposing recognition of the wrongful birth tort as “compelling” and saying that the only reason for the decision is that “the great weight of authority to the contrary forces us to agree with the majority of courts and the legal commentators’’ (117 Ill. 2d at 258). Obviously, the decisions of courts of other jurisdictions may persuade but cannot coerce us, and this court would abdicate its solemn duty if we merely deferred to the wisdom of other judges. As I see it,, there is no basis for the quandary the majority perceives itself to be in — confronted by what it regards as compelling arguments on one side and the great weight of authority on the other. The wrongful birth action involves classic malpractice: the doctor’s negligence deprives the parents of their ability to make an informed choice that they have a legal right to make, and, as a result, the parents sustain actual damages. This is the foundation for the decisions of other courts, and there is no reason why the majority should accept it so grudgingly, thereby conveying the impression that it would have preferred to reach the opposite result.
While I concur in the result reached in Part II, I believe that Parts I and III of the majority opinion are wholly in error. In Part I, the majority extends its holding in Goldberg v. Ruskin (1986), 113 Ill. 2d 482, to bar special damages as well as general damages for wrongful life. Although Goldberg strictly confined itself to the question of general damages, this extension was predictable because the court reasoned there that a child suffers no legally cognizable injury by being bom. I continue to disagree for the reasons so eloquently and soundly stated by Chief Justice Clark in his dissenting opinion in Goldberg, by Justice Rizzi in his dissenting opinion in the appellate court in the same case (Goldberg v. Ruskin (1984), 128 Ill. App. 3d 1029, 1044 (Rizzi, P.J., dissenting)) and by Justice Hartman in his opinion for the appellate court in this case.
The court is not, however, content to rely on Goldberg, but instead insists on injecting as well a purported public policy contained in section 1 of the Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1985, ch. 38, par. 81— 21). That statute does not, in my opinion, reflect any valid, subsisting policy of the State of Illinois. The act itself recognizes that the prohibition of abortion except when necessary to preserve the life of the mother is at best the “former policy” of the State (Ill. Rev. Stat. 1985, ch. 38, par. 81 — 21) and that the United States Constitution, as interpreted by the Supreme Court in Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, has displaced this policy. The legislature’s attempt to proclaim a once and (perhaps) future policy which is not and cannot be the current public policy is an exercise in futility. To my mind the legislature has no authority to enact statements of reversionary policy, which, of course, would not bind future legislatures.
The majority’s emphasis on a sentence in the statute announcing that the unborn child is, from the time of conception, a “human being *** [and] therefore, a legal person for purposes of the *** right to life” is also misplaced. In Akron v. Akron Center for Reproductive Health (1983), 462 U.S. 416, 76 L. Ed. 2d 687, 103 S. Ct. 2481, a city ordinance required physicians to obtain the “informed consent” of all women seeking abortions by telling them, inter alia, that “the unborn child is a human life from the moment of conception.” The Supreme Court struck down the requirement because it was “inconsistent with the Court’s holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions.” (462 U.S. 416, 444, 76 L. Ed. 2d 687, 712, 103 S. Ct. 2481, 2500.) The Illinois Abortion Law suffers the same defect. The majority apparently believes that the declaration that the unborn child is a legal person can be wrenched from its context and properly used as a reason to reject the tort of wrongful life, but this ignores the explicit language of the provision which states that the fetus is a legal person “for purposes of the *** right to life.” Since the pronouncement is ineffectual with respect to . the subject explicitly addressed — abortion—I do not see how it can have greater impact on the independent question of the tort of wrongful life. Contrary to the majority opinion, the supremacy clause of the United States Constitution (U.S. Const., art. VI, cl. 2), precludes any all-encompassing State policy “favoring childbirth over abortion” (117 Ill. 2d at 249), and thus the court cannot properly justify its decision by reference to the Illinois Abortion Law.
Reliance on the Illinois Abortion Law to deny a cause of action for wrongful life is disingenuous since the argument has equal force with respect to the parents’ claim for wrongful birth, which the majority sustains. The majority offers no distinction, simply failing to explain why the Illinois Abortion Law is relevant to bar a suit for wrongful life but not wrongful birth. The gravamen of the injury under the majority’s wrongful birth theory is that the defendants negligently deprived the parents of the opportunity to choose abortion. But if our public policy is truly “pro-life,” why should we allow a cause of action for this brand of medical practice? Under the majority’s reading of our public policy, we should instead pat the defendant doctors on the back for their work in frustrating a choice of abortion. The fact is that no such public policy exists, and the Illinois Abortion Law has no more persuasive effect on the question of wrongful life than it does on wrongful birth.
Part III of the majority opinion refuses any recovery for the parents’ emotional distress based on the zone-of-danger rule articulated in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546. The Rickey rule, formulated in the context of bystander cases, should not govern in situations like this one in which the parents are not bystanders either by chance or because of relationship, but the actual victims of the defendants’ negligence. The majority has in fact held that the parents are the only victims here. The majority says that the plaintiffs have afforded no reason to broaden Rickey to cases in which those suffering emotional distress are not threatened with physical impact. But neither has the majority advanced any suggestion as to why the general tort rule — that injuries proximately caused by the negligent conduct of one who has a duty to the victim are compensable — should not apply here. The old “impact” rule and the more recent “zone-of-danger” rule are theories that have developed to keep the door from opening wide in instances where recovery is sought for injuries which are emotional and not physical.
In Rickey this court noted that opponents of recovery for emotional distress justify guarding the door by pointing to the possibility , of fraudulent or frivolous litigation, the difficulty of measuring damages, and the supposition that emotional injuries are not foreseeable. (98 Ill. 2d 546, 555.) Whatever force these considerations may have in the typical hit-and-run or accidental injury case, they are irrelevant here. There can be little danger of fraudulent or frivolous claims that a physician failed to adequately investigate or advise parents of the risk that their child would be bom with a serious congenital illness. And I think it is patently foreseeable that birth of a chHd so afflicted, after the parents based the decision not to abort on the doctor’s inaccurate assurance that the risk was very low, could result in emotional trauma to the parents. The measurement of damages for this type of emotional distress is no more difficult than in cases where the emotional distress has been intentionally inflicted or negligently inflicted on a person within the zone of physical danger. In both of the latter situations, the law of this State permits recovery. (Knierim v. Izzo (1961), 22 Ill. 2d 73; Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546.) “[Cjourts have come to recognize that mental and emotional distress is just as ‘real’ as physical pain, and that its valuation is no more difficult” (Berman v. Allen (1979), 80 N.J. 421, 433, 404 A.2d 8, 15) and have therefore permitted parents to recover for emotional distress caused by wrongful birth (80 N.J. 421, 404 A.2d 8; Naccash v. Burger (1982), 223 Va. 406, 290 S.E.2d 825; Harbeson v. Parke-Davis, Inc. (1983), 98 Wash. 2d 460, 656 P.2d 483). The focus should be on injuries directly flowing from the defendants’ negligence, and I see no reason to apply the artificial Rickey limitation in these circumstances instead of allowing the plaintiffs to prove emotional distress.