dissenting:
The majority’s determination that the legislature’s so-called primary right to define crimes and their attendant punishment warrants the Court’s refusal to alter the archaic “born-alive” rule is nothing but an abdication of duty in the face of controversy. Their “decision not to decide” establishes a paradoxical injustice under the laws of this State. That is, if a viable unborn child is killed, the estate may sue for monetary damages from the wrongdoer. However, if the same child is killed under circumstances which would constitute murder or manslaughter, but for the fact that the child is still in his mother’s womb, the wrong-doer is immune from criminal prosecution for the intentional killing.
In State ex rel. Combs v. Boles, 151 W.Va. 194, 199, 151 S.E.2d 115, 118, this Court recognized that, “Homicide is the killing of any human creature....” Whether an unborn child capable of life independent of its mother is a human creature within the context of our criminal law was the question so eagerly avoided by the majority. Yet, in Baldwin v. Butcher, 155 W.Va. 431, 444, 184 S.E.2d 428, 435 (1971), this Court previously recognized that, “A viable unborn child is, in fact, a biologically existing person and a living human being, because it has reached such a stage of development that it can presently live outside of the female body as well as within it.” In Baldwin, a viable unborn child was held to be a “person” for purposes of our wrongful death act. Today, however, for “policy” reasons the majority refuses to grant these same individuals the protections due under our criminal law. In simple terms, you can, under our law, collect but not convict.
Reliance upon a distinction between the Court’s role in the evolution of tort law and criminal law as a basis for avoidance of such a serious legal issue is clearly untenable under the circumstances presented in this case. Contrary to the majority’s assertion, the Baldwin decision was not based in an area of common law tradition. Rather, as noted in Baldwin, “no right of action for death by a wrongful act existed at common law, the right or cause of action for wrongful death, if maintainable, exists under and by virtue of the provisions of the wrongful death statute of this State.... ” 155 W.Va. at 433, 184 S.E.2d at 429.*
On the other hand, as recognized by the majority in the immediate proceeding, this State’s murder statute does not define all the elements of the crime. West Virginia Code § 61-2-1 (1984 Replacement Vol.) is primarily designed to “categorize the common law crimes of murder for the purpose of setting degrees of punishment.” Syl. pt. 5, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). A decision here to defer to the legislature’s “primary power” to create and define crimes, therefore, ignores the basic fact that the legislature has chosen to rely mainly upon common law principles fashioned by the courts. Certainly it cannot be a usurpation of legislative power for this Court to continue to define what has been left within the common law realm.
If there was any support for the majority’s reliance upon a distinction in the common law role of the courts in the areas of criminal and tort law, it would appear that we have a greater duty to define the protections against destruction afforded a viable unborn child under our murder statute than under our wrongful death statute. *358Accordingly, this Court could abrogate the archaic “born alive” rule while still protecting women’s fundamental right of privacy in their own bodies by declaring that intentional acts, unconsented to by the mother, which result in the injury or death of a viable fetus may be punished under the criminal laws of this State where all requisite elements, including viability, are proven beyond a reasonable doubt.
This is not an instance of a recent problem where the legislature has not had adequate time or opportunity to act. Various state legislatures, beginning with the New York State Legislature over 150 years ago, have ameliorated the harsh consequences of the “born alive” rule. See Westerfield, The Born Alive Doctrine: A Legal Anachronism, 2 So.Univ.L.Rev. 149 (1976). The majority, however, prefers to remain quiescent, perpetuating this injustice in the blind confidence that the problem will eventually be addressed.
For the foregoing reasons, I respectfully dissent.
The majority also cites our adoption of a form of comparative negligence in Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979) as an example of courts' traditional role in tort law development. However, of the forty-two states which have adopted comparative negligence, only ten have done so by court decision. See Hilen v. Hays, 673 S.W.2d 713, nn. 3 & 4 (Ky.1984).