dissenting.
At least thirty-one states judicially allow a wrongful death action for the death of a viable fetus. Only nine states preclude such an action. The reasons given in support of those jurisdictions which permit recovery for the tortious conduct of another causing prenatal injury resulting in the death of a viable unborn child are compelling.
It is first noteworthy to say that, while Arkansas has, as yet, not decided the issue, virtually all American jurisdictions have ruled that a tort action can be maintained to recover damages for prenatal injuries negligently inflicted, if the injured child is born alive. See 40 A.L.R.3d 1222, 1228 (1971); Prosser and Keeton, The Law of Torts § 55, at 368 (5th ed. 1984). In this respect, Prosser states that the child, if he is born alive, is now permitted in every jurisdiction to maintain an action for the consequence of prenatal injuries, and if he dies of such injuries after birth, an action will lie for the wrongful death. This statement appears consistent with Arkansas statutory law, and the majority opinion here takes no exception to this proposition. While the majority opinion appears to recognize that a prenatal-injured, viable fetus may have a cause of action for negligence if the fetus is born alive, no such action exists if the fetus is stillborn. Such a distinction is illogical.
In my view, it is logically indefensible and unjust to deny an action where the child is stillborn, yet permit the action where the child survives birth but only for a short period of time. See Werling v. Sandy, 17 Ohio St. 3d 45, 476 N.E.2d 1053 (1985). To illustrate the absurdity of this live-birth requirement adopted by the majority court here, one need only consider the following incisive hypothetical situation as set out in Werling:
. . . Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.
Id., 476 N.E.2d at 1055 (citation omitted).
The rule our majority court adopts today, denying a cause of action for a stillbirth child, was also thoroughly criticized in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976), as follows:
[I]f prenatal injury is wrongfully inflicted there is no perceptible reason why there should be a legally recognized difference between a death that occurs immediately before birth and one that occurs immediately after .... [I]t makes poor sense to sanction a legal doctrine that enables the tortfeasor whose deed brings about a stillbirth to escape liability but that renders one whose wrongdoing is less severe answerable in a wrongful death or other negligence action merely because his victim survives birth.
Id., 365 A.2d at 753. See also Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984).
Besides the illogical results that can ensue from adopting the minority rule which bars recovery for a stillborn child but not one born alive, the majority opinion also gives no more than lip service to the remedial nature of Arkansas’s wrongful death statute. For example, North Dakota, whose wrongful death statute is almost identical to Arkansas’s, has held that its statute’s purpose is to provide a right of action against one whose tortious conduct causes the death of another, and to the extent that it might be argued an ambiguity exists under the statute, the law should be construed liberally to accomplish its objective. Id. at 865. That being so, the wrongful death statute authorizes an action against one whose tortious conduct causes the death of a viable unborn child. See also O’Grady v. Brown, 654 S.W.2d 904, 910 (Mo. banc 1983) (court held the term “person” as used under Missouri’s wrongful death statute includes the human fetus en ventre sa mere, and further stated to hold otherwise would frustrate the remedial purpose for which the statute was intended).
The majority opinion permits this court to avoid its traditional judicial role, by suggesting the General Assembly should address the issues raised here concerning the state’s wrongful death statutes. Presumably, the General Assembly intended that the courts would construe the statute in a manner which would give effect to the statute’s purposes and objectives. See O’Grady, 654 S.W.2d at 911.
Finally, I would suggest that, in construing Arkansas’s wrongful death statute in the manner thirty-one other states have done is also consistent with the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973). There, the Court found the compelling point in the state’s legitimate interest of protecting potential life to be at viability, as the fetus, at that time, has the capability of meaningful life outside the mother’s womb. Applying the rationale in Roe, the wrongful death statute should be construed to include a viable fetus as a person entitled to protection. See Werling, 476 N.W.2d at 1056.
For the above reasons, I respectfully disagree with the majority court.
Corbin and Roaf, JJ., join this dissent.