dissenting.
I respectfully dissent from the views expressed by my esteemed colleagues.
This Court was first presented with the issue of whether a viable fetus, capable of living outside the uterus, is a person protected by the wrongful death statute in Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958). This was an action brought to recover for the death of a viable fetus after a pregnancy of thirty-eight weeks.1
The Court held that an unborn fetus was not a person in contemplation of the statute. The Court’s opinion seems to be predicated primarily upon two bases, viz.:
(1) the fact that the weight of authority was against such a construction;
(2) its view that an unborn child “is a part of its own mother’s physical body” and is not a person “capable of existence separate from its mother.”
It should be noted that Hogan was decided almost twenty years ago and that during this period phenomenal developments have marked this area of tort law. In Hogan the Court quotes 16 Am.Jur. Death § 75, at 56, as follows:
“Although there is authority to the contrary, the weight of authority supports the rule that, in the absence of a statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of the child. 204 Tenn. at 242, 319 S.W.2d at 224.”
Today, 62 Am.Jur.2d Prenatal Injuries (transferred from Death) § 2 (1972), after pointing out that in 1946 “the tide of judicial opinion began to turn” and after citing cases decided since 1946, states:
Numerous other cases recognizing a right of action for prenatal injuries have since been decided, resulting in a dramatic reversal of the previous judicial attitude in this area. Indeed, it has been said that seldom in the law has there been such an overwhelming trend in such a relatively short period of time as there has been in the trend toward allowing recovery for prenatal injuries to a viable infant. (Emphasis supplied).
Today 26 jurisdictions allow recovery for stillborn infants under wrongful death statutes; 2 12 do not allow such suits;3 and 13 have not passed upon the matter.4 This erodes a substantial portion of the reasoning for the conclusion reached in Hogan.
Under the modern concept of medicine I do not believe it arguable that an unborn child has no independent existence or that it is “a part of its own mother’s physical body.” Professor Dix Noel, in his 1959 Tennessee Survey on Torts, 12 Vand.L.Rev. 1350, makes this apt comment:
. it is unfortunate that the court placed its decision on the ground that a viable child has no separate legal personality and is merely “a part of its own mother’s physical body.” As noted in a standard treatise, “medical authority has recognized that the child is in existence from the moment of conception.” (Citing Prosser, Torts, Sec. 36, at 174 [2d ed. 1955]). 12 Vand.L.Rev. at 1366.
*780Four years after Hogan, the Court decided Shousha v. Matthews Drivurself, 210 Tenn. 384, 358 S.W.2d 471 (1962). This case involved the death of triplets who were injured before their birth and while en ven-tre sa mere, but who died shortly after birth and two days after the injury.
The Court specifically confined Hogan “to the facts therein presented” and to all intents and purposes retreated from the Hogan rationale. In contradistinction to the Hogan holding that an unborn child is “a part of its own mother’s physical body,” the Court quotes with obvious approval from an article appearing in Vanderbilt Law Review, wherein it was said:
That an infant en ventre sa mere is a distinct entity is a scientific, commonsense, legally recognized fact.” (Emphasis supplied). 210 Tenn. at 393. 358 S.W.2d at 475.
Also quoted with evident approval is this language from Tennessee Law Review.
An infant in ventre sa mere, or in the mother’s womb is supposed in law to be born for many purposes. It is capable of having legacy, or a surrender of a copy-hold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. 210 Tenn. at 394. 358 S.W.2d at 475.
The late Justice White, in Shousha, met the standard stare decisis argument thusly:
While we adhere strongly to the doctrine of stare decisis, we believe even more strongly in the growth and development of the law to the end that every party who suffers a wrongful injury may have a remedy for redress thereof. 210 Tenn. at 389. 358 S.W.2d at 473.
While Shousha holds that a “viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action,” (emphasis supplied) 210 Tenn. at 397, 358 S.W.2d at 476, there is no escape from the conclusion that this case, decided in the early stages of the developing law on the subject, must be regarded as a substantial modification of Hogan. Among other things, this follows from the Court's holding that the rule of non-liability to a viable child for prenatal injuries is “too harsh and is contrary to that justice which the law seeks to save and promote.” 210 Tenn. at 395, 358 S.W.2d at 476.
It was this logic that prompted Judge Parrott to dissent from the holding of the Court of Appeals. He points out that if “two of the infants had been killed prior to birth and the third was born alive but died immediately after birth, a wrongful death action could only be maintained on behalf of the third infant.” Judge Parrott quotes from the Ohio Court of Appeals, in Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106, 108 (1959).
. it would be absurd if recovery could be had for such injuries, unless those injuries were so severe as to cause death before birth.
Such a distinction could lead to bizarre results. 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 the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither. Inasmuch as the Supreme Court has already determined that there is a cause of action in the case of the one, we can see no valid reason for denying it in the other.
Irrespective of the implications of Shou-sha, the subsequent case of Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963) (opinion also by Justice White), makes it clear that Shousha did not overrule Hogan, and holds without equivocation that under our wrongful death act there can be no recovery for the death of a stillborn child as a result of prenatal injuries. This is the law today.
II.
A study of these three Tennessee cases leaves me with the impression that our law is primarily based upon the medically unac*781ceptable basis that an unborn child “is a part of its own mother’s physical body,” 204 Tenn. at 243, 319 S.W.2d at 224, and has no separate existence of its own until after birth. By definition, this is a fallacy. Dor-land’s Medical Dictionary (23d ed. W. B. Saunders Company 1959) instructs us that a “fetus” is “the developing young in the human uterus after the end of the second month.” Before eight weeks, according to the same authority, “it is called an embryo; it becomes an infant when it is completely outside the body of the mother.” A fetus becomes viable when it “has reached such a stage of development that it can live outside the uterus.” Id. It would thus appear that a viable fetus has its own identity, is capable of living outside the uterus, and is not “a part of its own mother’s physical body.”
The Massachusetts case of Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), is generally recognized to be the source of the rule that a child en ventre sa mere is a part of the mother and has no separate existence and that, therefore, there may be no recovery for prenatal injuries.5 The Court in Hogan relied heavily on this case.
The tide of judicial opinion did not begin to turn against Dietrich until 1946, when the case of Bonbrest v. Kotz, 65 F.Supp. 138, came before the United States District Court for the District of Columbia. Rejecting the “part of its mother” concept as being “rather anomalous” and a “contradiction in terms” and noting that “[t]he law is presumed to keep pace with the sciences and medical science certainly has made progress since 1884,” 65 F.Supp. at 143, the Court permitted recovery for injuries sustained by a viable fetus.
The first state Supreme Court to break away from Dietrich was Ohio. In Williams v. Marion Rapid Transit, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051 (1949), the Court held that a right of action existed in favor of a viable fetus for prenatal injuries.
Thereafter the case of Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L. R.2d 634 (1949), came before the Supreme Court of Minnesota. This is the first American case to permit a recovery for the wrongful death of a stillborn infant. It is of interest to note that the Hogan Court did not approve of Verkennes but the Shousha Court cited it with apparent approval.
The retreat from Dietrich has long since taken on flood-tide proportions; and, as indicated earlier, the majority of American jurisdictions now permit recovery for injuries causing the death of a stillborn fetus. See Annot., “Action for Death of Unborn Child,” 15 A.L.R.3d 992 (1967).
Numerous cases discuss and reject the notion that impelled this Court in Hogan, that an unborn child is a part of its mother. One of the better reasoned decisions is the case of O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971), involving an eight-month-old viable infant, wherein the Court discussed this critical area as follows:
The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Lukes Hospital, 184 Ill. 359, at 368, 56 N.E. 638, at 640, was written in 1900. His view has been largely adopted in this country.
The majority in that case held:
“That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed.”
Justice Boggs wrote: “Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother.”
*782If the mother can die and the fetus live, or the fetus die and the mother live, how can it be said that there is only one life?
If tortious conduct can injure one and not the other, how can it be said that there is not a duty owing to each?
The phenomenon of birth is not the beginning of life; it is merely a change in the form of life. The principle feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains.
That the fetus cannot be seen is hardly the measure of life. That it cannot cry or see or remember — can these things control its right to live?
What of the capacity for “independent” life?
A baby fully born and conceded by all to be “alive” is no more able to survive unaided than the infant en ventre sa mere. In fact, the babe in arms is less self-sufficient — more dependent — than his unborn counterpart.
Does he want to eat? He cannot take himself to his mother’s breast, or even discover the use of it without her help. He cannot keep himself warm or dry or ward off danger. He lives by the sufferance of others, demanding the means of sustaining his life by the noisy, endearing, obvious fact of his presence.
The demands of the unborn child are no less total, but they are enforced by physical rather than emotional attachments. Ensconced and protected, he takes what he needs without asking. Only the conscious or negligent acts of others can deprive him of sustenance.
The phenomenon of birth is an arbitrary point from which to measure life. True, we reckon age by counting birthdays. The Chinese count from New Years. The choice is arbitrary.
Birth may be natural, where the fetus has commenced the process by chemical changes within himself, and the mother has cooperated; it may be intentional, as in the case of Cesarean section or induced labor; or it may be accidental, as where the child is separated from the mother by trauma.
One need not be alive in order to be born; as the delivery of stillborn babies demonstrates. Neither is it possible for one to be born alive unless he be living prior to the birth.
A fetus having died within its mother’s womb is dead; it will not come alive when separated from her. A fetus living within the mother’s womb is a living creature; it will not die when separated from her unless the manner, the time or the circumstances of separation constitute a fatal trauma.
The fact of life is not to be denied. 188 N.W.2d at 786-788.
In Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass.1975), the Court agreed with the majority of jurisdictions that conditioning a right of action on whether a fatally injured child was born alive or dead was not only an artificial and unreasonable demarcation, but unjust as well. The Court cited the rationale of Todd v. Sandidge Constr. Co., 341 F.2d 75 (4th Cir. 1964):
If the trauma is severe enough to kill the child, then there could' be no recovery; but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity. Id. at 77.
It should be noted that the Tennessee Vital Statistics Act of 1941 (Section 53-401, et seq., T.C.A.) defines stillbirth to mean “a birth after twenty (20) weeks of gestation which is not a live birth.” Section 53-402(c), T.C.A. In terms of months this tends to indicate that after about four and one-third months we treat the fetus as a separate entity, although “[vjiability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 *783weeks.” Roe v. Wade, 410 U.S. 113, 160, 93 S.Ct. 705, 730, 35 L.Ed.2d 147, 181 (1973). A death certificate is required under Tennessee law for all stillbirths. Sections 53-438, 53-439, T.C.A.
I think that to permit a wrongful death action based upon the infliction of tort upon a fetus subsequently born alive but whose death immediately ensues, and to withhold such action where the fetus is born dead is illogical, unreasonable and indefensible. I would hold that a viable fetus is a “person” within the meaning and intent of Section 20-607, T.C.A., and that an action will lie at the instance of the statutory beneficiaries for his or her wrongful death. Such a holding would, in no sense, invade the province of the legislature. It is the duty of the judicial branch to construe the language of legislative enactments. The legislature, in my view, merely intended to provide a wrongful death action, leaving its administration and construction to the courts.
My brother BROCK joins in this dissent.
. Equated by the Court and counsel, and in subsequent cases, with nine and one-half months.
. Alabama, Alaska (Fed.Court), Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, Ohio, ■ Oklahoma, Oregon, Rhode Island, South Carolina, Washington, West Virginia and Wisconsin.
. Arizona, California, Florida, Iowa, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Tennessee and Virginia.
. Arkansas, Colorado, Hawaii, Idaho, Maine, Montana, New Mexico, North Dakota, South Dakota, Texas, Utah, Vermont and Wyoming.
Note: For case citations see Annot., “Action for Death of Unborn Child,” 15 A.L.R.2d 992 (1967).
. Massachusetts now permits recovery. See Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass.1975).