concurring.
In my view, the reliance of the majority on the “born alive” doctrine is misplaced. I view the distinction between this case and the decision in Hollis v. Commonwealth, Ky., 652 S.W.2d 61 (1983), as artificial and without a logical basis.
In Hollis, the Court held that the fetus was not a person and that the killing of the fetus was not murder. In this case, however, the majority has held that wanton injury to a fetus may be homicide if the fetus is born alive and thereafter succumbs. The effect of this is to “wait and see” whether a crime has been committed.
The underlying criminality of an act must be determined as of the time the act is committed. For example, the act of intentionally causing physical injury to another person is then a crime whether the result is only slight injury (assault in the fourth degree) or serious physical injury (assault in the second degree). While a determination of the specific crime may await the result of the criminal act (assault may become murder if the victim dies), a determination of whether any crime has occurred may not be so deferred.
In my view, this case cannot be harmonized with Hollis. Here, as in Hollis, the criminal conduct was committed against a viable fetus and in each case, the act was then a criminal act or it was not. We should take this opportunity to overrule Hollis v. Commonwealth, supra, and abandon its restrictive definition of the word “person,” a definition not remotely compelled by legislative history, rules of statutory construction, or persuasive authority from other jurisdictions. See Hollis v. Commonwealth, Wintersheimer, J., dissenting. We should hold that a viable fetus enjoys full protection of the criminal law and that the terms “person” and “human being” include viable unborn children.
I concur with the result of the majority opinion but on the grounds set forth herein.
Reynolds and Wintersheimer, JJ., join in this concurring opinion.