dissenting:
I.
I dissent from the majority’s application of the statute of limitations set forth in I.C. § 5-219(4). The majority concludes that “the statute of limitations does not begin to run against a negligence action until some damage has occurred,” even though the legislature, in I.C. § 5-219(4) has provided that professional malpractice actions “shall be deemed to have accrued as of the time of the occurrence, act or omission complained of....” A review of the history of the amendment to I.C. § 5-219(4) clearly demonstrates how the Court in this case is ignoring the legislature’s directive with regard to when the statute of limitations begins to run.
In Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969), Justice Shepard, in responding to the argument that the extension of the Billings discovery rule “should be left to the legislature rather than this Court indulging in judicial legislation,” stated:
“Our legislature did not define the time of accrual as being either the time of the performance of the negligent act or the time of the acquisition of knowledge of *269the negligent act. That was done by this Court. To adopt the ‘discovery rule’ is to imply the existence of knowledge as a requirement for the accrual of an action and thus supply knowledge as a statutory requirement. Conversely, to reject the rule is to imply that the legislature considered the requirement of knowledge as an element of accrual and deliberately excluded such terminology from the statute. Legislative inaction should not be ignored in determining legislative intent, but to imply such an intent in this case as a result of legislative inaction is unreasonable. Berry v. Branner, supra, [245 Or. 307, 421 P.2d 996 (1966)] At the moment, our statutes, as most others across this country, are silent as to the interrelationship between ‘knowledge’ and ‘accrual.’ We are required to reach a decision without assistance from our legislative brethren.” Renner v. Edwards, 93 Idaho at 840, 475 P.2d at 534 (1970).
The Renner case was decided on rehearing on October 8,1970. Immediately thereafter, in the winter 1971 legislature, an amendment was introduced to I.C. § 5-219(4) which gave this Court the “assistance” — indeed the direction — which this Court stated in Renner was lacking at the time it extended the Billings discovery rule to that misdiagnosis case. That amendment to I.C. § 5-219(4) specifically provided that in professional malpractice actions (except cases involving foreign objects left in the body) the cause of action “shall be deemed to have accrued as of the time of the occurrence, act or omission complained of ....”
Several subsequent cases have recognized that the 1971 amendment to I.C. § 5-219(4) was enacted to change the result of our Renner case. In Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972), Chief Justice McQuade, speaking for a unanimous Court, noted that “the legislature has narrowed the scope of Renner through recent enactment of I.C. § 5-219(4) ....” In Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978), this Court again recognized that the 1971 amendment to I.C. § 5-219(4) was the legislature’s response to this Court’s observations in Renner that “[o]ur legislature did not define the time of accrual as being ... the time of the performance of the negligent act ...,” and that “[w]e are required to reach a decision without assistance from our legislative brethren.” The Court in Martin v. Clements, supra, stated:
“Since the 1970 decision in Renner v. Edwards, supra, and perhaps partially in response to that decision, our legislature in 1971 amended I.C. § 5-219(4) to define when a cause of action accrues for purposes of applying the statutory period of limitation in professional malpractice actions. Under amended I.C. § 5-219(4), a cause of action shall be deemed to have accrued as of the time of the act or omission complained [of, except in foreign object medical malpractice actions] ....” 98 Idaho at 909, 575 P.2d at 888.
Finally, in Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983), the Court again stressed that by the 1971 amendment the legislature amended I.C. § 5-219(4) to change the rule announced in Renner concerning when the statute of limitations begins to run in misdiagnosis cases. The Holmes decision states:
“Prior to March 24, 1971, I.C. § 5-219(4), the statute of limitations applicable to professional malpractice actions, in essence provided that an action had to be filed within two years of the alleged professional malpractice; the statute made no reference whatsoever to the interrelationship between the accrual of a cause of action and knowledge of a cause of action. Without the benefit of legislative guidance, this Court adopted the so-called ‘discovery exception’ in cases in which foreign objects were negligently left in a patient’s body. In Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), we held that ‘the cause of action [in such cases] does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of [the] foreign object in his body.’ *270Id. at 498, 389 P.2d at 232. In Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969), aff'd on rehearing, we extended the discovery rule to cases of misdiagnosis and held that the statute of limitations did not begin to run until the patient knew or should have known of the physician’s misdiagnosis.
“However, soon after our decision in Renner, and perhaps partly in response thereto, the legislature substantially amended I.C. § 5-219(4). 1971 Idaho Sess. Laws, ch. 180, § 1. By amending I.C. § 5-219(4), the legislature narrowed the scope of Renner and, in large part, defined when a cause of action accrues for the purposes of applying the statutory period of limitations in professional malpractice actions. Under amended I.C. § 5-219(4), the discovery exception first recognized by this Court in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), is limited to cases involving foreign objects and fraudulent concealment. In all other professional malpractice actions, ‘the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of....’ The action must be brought within two years of that time.” 104 Idaho at 183-84, 657 P.2d at 478-79 (footnotes omitted).
The action brought by the plaintiffs in the present case is another Renner-type misdiagnosis case. The plaintiffs’ complaint in this case alleges that Dr. Cruz misdiagnosed Mrs. Blake’s condition to be roseola, rather than rubella (German measles), and consequently deprived Mrs. Blake of the knowledge which she needed to make the decision to terminate her pregnancy. The record reflects that Mrs. Blake was pregnant and had the rubella disease before she came to see Dr. Cruz. Dr. Cruz had nothing to do with her contracting the disease, nor could he have administered any medication or treatment which would have ameliorated either her condition or that of the fetus with which she was then pregnant. In short, the only thing Dr. Cruz could have done was advise Mrs. Blake of her condition in order that she could have made the decision to abort the fetus. This is the classic Renner-type misdiagnosis case at which the amendment to I.C. § 5-219(4) was directed when the legislature specifically said that the cause of action “shall be deemed to have accrued as of the time of the occurrence, act or omission complained of____”
It is clear that the legislature knows how to draft a statute which provides for accrual of the cause of action at some later time 'than “the time of the occurrence, act or omission complained of ....” A good example of such a statute is that considered by this Court in Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977). In that case the Court was considering I.C. § 6-906, the very short 120-day limitations provision in the Idaho Tort Claims Act. That statute provided that all claims had to be filed “within one hundred and twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.” However, in the present case, the 1971 amendment to I.C. § 5-219(4) provides that the cause of action shall commence “as of the time of the occurrence, act or omission complained of ....” The legislature obviously knows the difference between a statute of limitations which commences at the time that the alleged tortfeasor commits his act, and some later time when either the injured party learns of it or when some damage shows up. That is pointed out in the 1971 amendment to I.C. § 5-219(4) itself, where the legislature expressly provided that, in the case of foreign objects inadvertently or accidently left in a person’s body, the statute of limitations shall not begin to run until “the injured party knows or in the exercise of reasonable care should have been put on inquiry regarding the condition or matter complained of ....”
If we were dealing entirely with a common law rule, or even if we were dealing with I.C. § 5-219 as it existed at the time of Renner — i.e., prior to the 1971 amendment — the rule announced by the majority of the Court today might be a good rule. However, the legislature, by the 1971 *271amendment to I.C, § 5-219(4), has set the policy and this Court should not ignore it.
The majority opinion pretends to be following the statute by stating that when I.C. § 5-219(4) uses the words “professional malpractice ... shall be deemed to have accrued as of the time of the occurrence, act or omission complained of ...,” the “occurrence” is the birth of the defective child, not what the doctor did wrong. However, in this case the doctor had nothing to do with either the pregnancy (she was pregnant before she ever came to see the doctor), or the disease or injury (she already had rubella when she came to see the doctor), and there was nothing which the doctor could do to alleviate either of those two conditions. The plaintiff is complaining that the doctor misdiagnosed her condition, thereby depriving her of the right to have an abortion. Assuming that the statute by using the word “occurrence” does refer to the damage to the plaintiff not the act of the doctor (which is a twisted interpretation of what the legislature says), the deprivation to this plaintiff was not the “birth of a defective child” but deprivation of her right to have an abortion. Under Roe v. Wade that right only existed unqualifiedly for the first trimester. Under I.C. § 18-608, she had no right to an abortion during the third trimester because under that statute abortions may only be performed during the third trimester when “necessary for the preservation of the life of such woman or, if not performed, such pregnancy would terminate in birth or delivery of a fetus unable to survive.” In this case, there is no claim of threat to the life of the mother, or of the ability of the fetus to survive. Therefore, the Blakes’ right to an abortion probably lasted only during the first trimester, but in no event did it continue into the third trimester. Thus, even if “occurrence” did mean when the injury occurs, rather than the act which the doctor commits, which is what the statute says, in this case it occurred during the first but no later than the second trimester, not at the birth of the child. Accordingly, the statute of limitations would have run even if the word “occurrence” in 5-219(4) refers to the damage to Mrs. Blake and not the act of the doctor.
It is true that Mrs. Blake did not know that the doctor allegedly deprived her of her right to an abortion until after the child was born. However, to start the statute running when she gained knowledge of the doctor’s misdiagnosis is to merely reinstate the “discovery rule” of Renner v. Edwards. In that case Justice Shepard said, “To adopt the ‘discovery rule’ is to imply the existence of knowledge as a requirement for the accrual of an action and thus supply knowledge as a statutory requirement.” As this Court stated in three subsequent cases, the legislature intended to change the Renner discovery rule by the 1971 amendment to I.C. § 5-219(4). I.C. § 5-219(4), which states that “professional malpractice ... shall be deemed to have accrued as of the time of the occurrence, act or omission complained of,” refers to the conduct of the doctor, not to the time when the claimant was deprived of her right to an abortion. But even if it did, the claimant in this case was at best deprived of her right to an abortion only for a three or six-month period from the beginning of her pregnancy. It did not occur at the “birth of a defective child” since the doctor had nothing to do with either the concep-. tion or the defect in the child, andjie-could have done nothing to prevent the defect. Thus, even under the majority’s interpretation of the word “occurrence,” the statute of limitations has run in this case and the district court correctly dismissed the complaint.
II.
I am also troubled by that part of the majority opinion relating to the claim of wrongful birth. It is necessary to distinguish those cases where the professional health care provider has caused the injury to the fetus as a result of some treatment or lack of treatment while in his professional care, and cases, such as this case, where the doctor had nothing to do with the injury or illness and could not have helped or cured it by treatment, but allegedly failed *272to diagnose the condition and advise the parents so that they could make an informed decision on whether or not to have the fetus aborted. I have serious reservations about recognizing a cause of action which imposes liability upon a medical professional in this circumstance. Such a cause,of action is premised upon an assumption that the parents would have aborted the fetus had they known of the defects which they, rather than the doctor, were responsible for. Some states have recognized such a cause of action, as the majority opinion points out. In order to prove such a claim, these parents would have the affirmative burden of convincing a jury that they would have aborted the fetus rather than run the risk that it might be born with some defects resulting from the mother’s having contracted rubella. I seriously question whether juries can, and indeed should be required to make such a determination.
However, a majority of the Court has concluded that such a cause of action is permissible and that the appropriate measure of damages should be the “extraordinary expenses, medical, custodial and otherwise necessitated by the child’s condition from birth to [its] estimated life expectancy .... ” Ante at 320. The majority would also allow the Blakes to recover damages for emotional distress. In reaching this conclusion, the majority acknowledges that “[g]rief and anguish are not allowable elements of recovery.” I fail to see a meaningful distinction between emotional distress and “grief and anguish.” In fact, case law appears to use the terms interchangeably. Compare Hepp v. Ader, 64 Idaho 240, 245, 130 P.2d 859, 862 (1942) (citing Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676 (1930), for the proposition that recovery for grief and anguish is not available) with Wyland v. Twin Falls Canal Co., supra at 796, 285 P. at 678 (damages for mental suffering not available).
Idaho has long adhered to the position that damages for emotional distress are not awarded in wrongful death actions. See Volk v. Baldazo, 103 Idaho 570, 573, 651 P.2d 11, 14 (1982); Hooton v. City of Burley, 70 Idaho 369, 379, 219 P.2d 651, 657 (1950); Wyland v. Twin Falls Canal Co., 48 Idaho 789, 798, 285 P. 676, 678 (1930). Damages for emotional distress are likewise not awarded in actions seeking to recover for injury to a child. Hayward v. Yost, 72 Idaho 415, 427, 242 P.2d 971, 978 (1952). Although I question whether “wrongful birth” is analogous to cases dealing with parents who seek recovery for death or injury of a child, it is clear that the majority is in error in suggesting that those cases are precedent for allowing damages for emotional distress in wrongful birth cases.
III.
Finally, I concur in that part of the majority opinion which rejects the so-called wrongful life cause of action on behalf of the child. To allow such a cause of action would be inconsistent with the legal premise behind the parents’ wrongful birth cause of action. The parents’ cause of action is based upon their sworn claim that had Dr. Cruz correctly diagnosed Mrs. Blake’s rubella condition, they would have taken the life of their fetal-child by obtaining an abortion. If the fetal-child which Mrs. Blake was carrying has no legal right or protection from such an intentional aborting act of her mother, a decision which apparently Mrs. Blake claims the right to make with impunity and immunity, upon what legal basis and upon what set of values can the doctor’s negligent misdiagnosis of the mother’s condition create a cause of action in the fetal-child? In our law an intentional act has always been considered more serious conduct than a mere negligent act. The so-called wrongful life cause of action in this case would reverse that longstanding policy of the law.
To state that the same negligent misdiagnosis, which created a cause of action in the parents because it prevented them from taking the life of their fetal-child, also created a cause of action in the child be*273cause it bestowed upon the child the gift of life, would be the ultimate incongruity.