concurring in part and dissenting in part.
I concur in the holding of the majority that a viable unborn child is a “person” within the meaning of the wrongful death statute, N.C.G.S. § 28A-18-2(b). On this issue, I deem it not inap*435propriate to set forth additional reasons that lead me to this conclusion.
In 1969 the General Assembly rewrote the wrongful death statute beginning with a preamble stating that “human life” is valuable. The legislature expanded the scope of recoverable damages to include pain and suffering of the decedent, loss of society, companionship, comfort, guidance, kindly offices and advice, and punitive damages. The revised statute thus contemplates that a much broader range of deaths will be compensable than under the earlier statute; that is, “person” now includes others than those who earn wages or those with easily provable monetary worth.
The public policy of this state as expressed by the legislature in our statutes recognizes that an unborn infant is a person. Significantly, an unborn infant, in esse, is “deemed a person capable of taking by deed or other writing any estate whatever in the same manner as if he were born.” N.C.G.S. § 41-5 (1984) (emphasis added). See also N.C.G.S. § 29-9 (1984) (unborn infant can inherit property); N.C.G.S. § 31-5.5 (1984) (unborn child at testator’s death can share in estate); N.C.G.S. § 33-2 (1984) (unborn child can have guardian appointed).
State v. Forte, 222 N.C. 537, 23 S.E. 2d 842 (1943), is also instructive. In Forte we held that an unborn infant has a “life capable of being destroyed” when it has “so far advanced as to be regarded in law as having a separate existence.” Id. at 538, 23 S.E. 2d at 843.
A viable baby — one which has developed within its mother’s womb to the point that it is capable of independent existence outside its mother’s womb, Black’s Law Dictionary 1404 (5th ed. 1979) (and cases cited therein) — clearly has an identity separate from its mother, medically and legally. The child has a separate physiological system; it is not a “part” or an organ of the mother but has an independent life.
The child here was well beyond full term and was obviously viable; therefore it had a separate and distinct existence and a life capable of being destroyed within the definition enunciated in Forte. If an unborn child has a life capable of being destroyed for the purposes of the criminal law, as in Forte, it has a life capable of being destroyed under the lesser civil standard of a wrongful *436death action. Negligent destruction of such life must therefore be compensable in a wrongful death action. These manifestations of the public policy of our state are consistent with the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 35 L.Ed. 2d 147, reh’g denied, 410 U.S. 959, 35 L.Ed. 2d 694 (1973), recognizing that a state has a compelling interest in protecting the life of an unborn child after viability.
The majority’s recognition of a cause of action for wrongful death of a fetus is also in accord with the great majority of the jurisdictions that have considered this issue.
I must dissent, however, from the opinion of the majority with respect to damages. The majority correctly holds that a viable unborn fetus is a “person” within the meaning of the wrongful death statute, then inexplicably attempts to cut away part of the statutory damages provided within the statute. This the Court cannot do. The plaintiff in this wrongful death action is no different from any other plaintiff; the plaintiff is entitled to recover such damages as are proved in accordance with the law. The trial judge may rule that plaintiff has failed to prove one or more elements of damages as a matter of law, but it is not for this Court to bar plaintiff from trying to prove all damages recoverable under the statute.
As I stated with regard to the limitation of damages in Jackson v. Bumgardner, 318 N.C. 172, 347 S.E. 2d 743 (1986):
The better practice would be to allow the trial court in the first instance to address the issue of what damages are recoverable. The appellate division would then have a full evidentiary record upon which to make a proper analysis as to damages rather than attempting to formulate an abstract rule. The majority has decided damage issues that have not been presented to us upon an evidentiary record and which may never be so presented. Sound judicial discipline would dictate withholding such momentous decisions until all available evidence and arguments can be presented to the Court. Precipitous judgments are to be avoided.
Id. at 189, 347 S.E. 2d at 753 (Martin, J., concurring in part and dissenting in part). The legislature has defined the possible elements of damage recoverable in a wrongful death action and *437must have intended that the same rule of damages apply to all such actions. It is not the prerogative of this Court to usurp a legislative function by rewriting the statute to change the rule of damages.
Nor can I adhere to the rule announced in the majority opinion that a wrongful death action based upon the death of a viable unborn fetus must be tried with any action the parents may have arising out of the fetal death. This is a matter better left to the discretion of the trial judge. There are many factors to be considered in deciding this question, such as the identity of parties and the negligent act or acts involved. Defenses available to defendant or defendants as to each plaintiff, time constraints within which to institute the different actions, the measurement of damages, and other factors, may vary. Protecting a defendant from paying double punitive damages on the same evidence can be accomplished on a case-by-case basis. The blanket rule required in the majority opinion would be at best unworkable and at worst unjust.
Justice MITCHELL joins in this concurring and dissenting opinion.