This cause of action arises out of an automobile accident which occurred on November 1, 1970. As a result of this accident, Betty Liggens allegedly suffered a miscarriage. The fetus was not "viable”. Prior to the trial of this action, defendant brought a motion for summary judgment pursuant to GCR 1963, 117 on the basis that this action was not maintainable as Baby Liggens was not medically viable. On September 24, 1974, the Honorable James N. Canham entered an order granting defendant’s motion for summary judgment. Plaintiff appeals from this order. There was no written opinion.1
The decedent was a three-month-old infant en ventre sa mere.2
The only issue presented in this case is whether a three-month-old infant en ventre sa mere, not *298born alive, is a "person” within the wrongful death act. MCLA 600.2922; MSA 27A.2922.
The word person has not previously been interpreted this broadly under this act in Michigan.
MCLA 600.2922(1); MSA 27A.2922(1) reads as follows:
"Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.”
Even though the wrongful death act is for the benefit of certain persons, the cause of action is a derivative one whereby the personal representative of the deceased stands in the latter’s shoes. Maiuri v Sinacola Construction Co, 382 Mich 391, 395-396; 170 NW2d 27 (1969). The suit is brought on behalf of the deceased. The cause of action belongs to the deceased. When an action is brought under the wrongful death act for the death of a fetus, the rights alleged are those of the fetus. It is not a suit for injuries to the mother, either physical or mental, accompanying or resulting from the loss of the fetus. Therefore, the case law discussed will relate to the right of the infant to recover for prenatal injuries.
Womack v Buchhorn, 384 Mich 718, 721-722; 187 NW2d 218 (1971), stated that 27 American *299jurisdictions allowed recovery for prenatal injury. An examination of those jurisdictions indicated that in each case where recovery was allowed the fetus was either viable3 or survived birth for at least a short time. Libbee v Permanente Clinic; 268 Or 258; 518 P2d 636, 638 (1974), provides an even more relevant survey of the various jurisdictions. Libbee stated that 19 jurisdictions expressly allowed recovery for the death of a viable unborn infant, while 12 jurisdictions expressly prohibit recovery. The cases reviewed in the Annotation, Liability for Prenatal Injuries, 40 ALR3d 1222, limit recovery for death or injury to either a viable fetus or a child injured before birth but born alive.4
None of the cases allowed recovery for the death of a three-month-old nonviable fetus that was not born alive. However, several jurisdictions did expressly prohibit recovery for the death of a nonviable fetus that was not born alive.5
*300O’Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971), has extended the law under Michigan’s wrongful death statute to allow an action on behalf of an eight-month-old viable fetus en ventre sa mere.
The discussion by the O’Neill Court of prenatal life more aptly describes a viable fetus. The Court stated, supra, at 135:
"The instructive dissent of Mr. Justice Boggs, in Allaire v St. Lukes Hospital, 184 Ill 359 (56 NE 638), at 368, 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.’ ”
The nonviable fetus by definition is deemed not capable of living outside its mother’s womb. The court further stated at 137:
"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.”
While much of the language in O’Neill is ambigú*301ous as regards viability, it does tend to exclude the nonviable fetus from its discussion.
O’Neill v Morse, supra, at 133, also discussed the case of Womack v Buchhorn, supra, in connection with the first section of the wrongful death statute:
"In Womack, we overruled, Newman v Detroit, 281 Mich 60 [274 NW 710] (1937), and held that a common-law action does lie in this state for prenatal injuries.
"Womack being the applicable rule of common-law tort liability, we have only to apply the wrongful death statute to the facts of this case.
"The obvious purpose of the statute, originally enacted as 1848 PA 38, is to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages. Womack settled the question of whether, if death had not ensued, Baby Boy Pinet would have had an action for damages.”
In Womack an action was brought on behalf of an eight-year-old surviving child for prenatal injuries suffered during the fourth month of pregnancy. However, Womack should not be read out of context to give significant legal existence to a nonviable fetus. As was stated in People v Nixon, 42 Mich App 332, 338, n 13; 201 NW2d 635 (1972):
"The Womack decision is sometimes mistakenly cited for the proposition that the Court recognized the unborn child’s 'right to live’. This is not the case, for as the Court clearly stated: 'The only issue in this case is whether a common-law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy.’ (Emphasis supplied.) Womack, supra, 719-720. Thus the Womack decision would appear to be limited to those cases where there is a live birth. If there is a live birth, then *302an action may be brought in the name of the child for prenatal injuries.”
While Womack does give a cause of action for prenatal injury, that action is not without limits. Those limits are drawn. The infant must have been born alive as in Womack or have been viable as in O’Neill in order to have an action brought in the infant’s own behalf, whether as a common-law action or as a wrongful death action.
The Womack Court itself failed to point out the key element of survival. The Court attributed the following to a Massachusetts case, supra, at 722, n 4:
’’MASSACHUSETTS allows an action for wrongful death of a non-viable fetus (3-1/2 months), holding that a non-viable fetus is a 'person’ within the meaning of the Massachusetts wrongful death act. Torigian v Watertown News Co, Inc, 352 Mass 446; 225 NE2d 926 (1967).”
However, a later Massachusetts case, Leccese v McDonough, 361 Mass 64; 279 NE2d 339, 341 (1972), stated in regard to a statute similar to the Michigan wrongful death statute:6
"The requirement that the foetus be born alive, stated expressly in the Keyes case, 340 Mass 633, 636; [165 NE2d 912 (1960)] lays down a sensible and easily *303administered rule under our statute. In recognizing the possibility of recovery under c. 229 § 2 (as amended), for a viable foetus born alive in the Keyes case, and for a foetus nonviable at the date of injury but later born alive (see the Torigian case, 352 Mass 446; 225 NE2d 926 [1967]), we went as far in revising the rule in the Dietrich case, 138 Mass 14 [1884], as the statutory language reasonably permits. If a foetus is born alive, it becomes a 'person’ with at least the theoretical possibility of survival and of enduring the consequences of prenatal injury throughout its life. A foetus not born alive seems to us to incur no such risk of continuing injury and also not to be a 'person’ within our interpretation of the legislative intention. If there are to be changes in the bases for recovery in this type of statutory action, we think that they are for legislative rather than judicial determination.” (Footnote omitted.)
Once an infant survives birth and thus becomes a "person,” the infant would have had a cause of action "if death had not resulted”.
Moreover, the O’Neill and Womack cases must be read in light of more recent developments in the case law. Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), has had a considerable impact on the legal status of the fetus.7 In discussing that legal status, the Roe Court stated, "the unborn have never been recognized in the law as persons in the whole sense”. Roe v Wade, 410 US 113, 162. Yet, the ruling by the Roe Court that the attending physician in consultation with the patient may terminate the pregnancy in the first three months, free of interference by the state, is the crucial point. See Roe v Wade, supra, at 163-164. If the mother can intentionally terminate the pregnancy at three months, without regard to the rights of the fetus, it becomes increasingly difficult *304to justify holding a third person liable to the fetus for unknowingly and unintentionally, but negligently, causing the pregnancy to end at that same stage. There would be an inherent conflict in giving the mother the right to terminate the pregnancy yet holding that an action may be brought on behalf of the same fetus under the wrongful death act.8
Finally, the statute itself, MCLA 600.2922; MSA 27A.2922, should not become the object of judicial legislation. If Michigan is to become the first jurisdiction to allow recovery under the wrongful death act on behalf of an unborn three-month-old nonviable fetus, it is a determination for the Legislature.
"This is a problem for the legislatures of the various states. They must decide the problems in the light of the moral issues, the conflicting rights of the mother and child, the extent of medical knowledge and the interests of the state.”9
In view of the aforementioned considerations, we hold a three-month-old infant en ventre sa mere, not born alive, is not a 'person’ within the wrongful death act. MCLA 600.2922; MSA 27A.2922.
Affirmed. Costs to the defendant.
R. B. Burns, J., concurred.The above facts were stipulated to by the parties and are adopted herein.
Although the complaint indicates the fetus was four months old, the filed deposition of the treating doctor, Samuel E. Strong, M.D., as well as the parties’ briefs, indicates the fetus was actually three months old.
A fetus is "viable” when it is "potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v Wade, 410 US 113, 160; 93 S Ct 705; 35 L Ed 2d 147 (1973).
The only exception to the above limits in the various jurisdictions is found in a ruling by the Court of Appeals of Georgia in Porter v Lassiter, 91 Ga App 712; 87 SE2d 100 (1955). After looking to decisions of the Supreme Court of Georgia relating to prosecutions for foeticide, the Porter court concluded the mother could maintain a suit for the loss of a 4-1/2 month-old baby dead upon birth. The Porter court further ruled that the child need not be "viable” provided it was "quick” or capable of moving in its mother’s womb. However, the suit was brought under a Georgia statute that appears to give parents a right of recovery for the loss of a child rather than giving the right to recover to the deceased infant.
ALASKA: Mace v Jung, 210 F Supp 706 (D Alas, 1962), ILLINOIS: Rapp v Hiemenz, 107 Ill App 2d 382; 246 NE2d 77 (1969), Chrisafogeorgis v Brandenberg, 55 Ill 2d 368; 304 NE2d 88 (1973), IOWA: McKillip v Zimmerman, 191 NW2d 706 (Iowa, 1971), MASSACHUSETTS: Leccese v McDonough, 361 Mass 64; 279 NE2d 339 (1972), NEW HAMPSHIRE: Poliquin v MacDonald, 101 NH 104; 135 A2d 249 (1957), SOUTH CAROLINA: West v McCoy, 233 SC 369; 105 SE2d 88 (1958) .
The Massachusetts statute reads in relevant part: "Chapter 229, § 2, as amended, reads in part (emphasis supplied): 'A person who (1) by his negligence causes the death of a person in the exercise of due care, or (2) by wilful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted * * * shall be liable in damages in the sum of not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of his culpability and distributed as provided in section one; except that * * * [exceptions not relevant].” 279 NE2d at 340, n 1.
Admittedly, the public policy of this state on abortion has been subordinated to the changed circumstances resulting from Roe v Wade. See People v Bricker, 389 Mich 524, 529; 208 NW2d 172 (1973).
Consider the implications of allowing such conflicting rights along with the abolition of intra-family immunity in Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972). Consider further the precarious position that the physicians of this state would be put in and the subsequent effect on the physician-patient relationship.
McGarvey v Magee-Womens Hospital, 340 F Supp 751, 754 (WD Pa, 1972).