concurring.
I concur in the result which affirms the decision of the Court of Appeals and the circuit court, but I do not agree with the limited approach to the question of person-hood.
I must agree with the concurring opinion rendered by Court of Appeals Judge Michael McDonald because the majority opinion achieves the right result but does not go far enough in examining the common law or Kentucky law.
K.R.S. 507.040 provides in part that a person is guilty of manslaughter and in the operation of a motor vehicle, he wantonly causes the death of another person. K.R.S. 500.080(12) clearly indicates that person, under the Kentucky statutes, means “a human being.” K.R.S. 507.010 also provides that a person is guilty of criminal homicide when he causes the death of another human being.
I believe there is sufficient definition in the Penal Code so as to preclude the invocation of the common law.
Counsel for Jones correctly frames the issue in the brief when he says, “The question presented in this case is whether Kentucky’s Penal Code requires that, at the time of the criminal act, the victim must already be a ‘human being,’ or whether some trauma inflicted upon a nonhuman being, i.e. a fetus, can sustain a conviction for homicide.” Jones argues that there is no question that a fetus is not a “person” as the word is used in the context of the criminal statutes. Jones cites Hollis v. Commonwealth, Ky., 652 S.W.2d 61 (1983) as his supporting case authority.
The fact that the deceased child was born alive is only a way station on her brief tragic journey of existence. As far as it goes, the majority opinion is adequate. *882However, a complete analysis of the statutes involved requires recognition of the fact that a person under Kentucky law actually means a human being and that it makes little difference whether the death occurred before or after birth because the offense was the killing of one human being by another. Such an offense has long been denounced by Kentucky criminal law.
My perception of the arguments presented here, both in the briefs and at oral argument indicates that the Attorney General clearly states that the holding of Hollis, supra, has no application. Jones argues that this Court stated in Hollis that the application of the homicide statute to a viable fetus would necessarily render the statute vague in that there would be no “objective legal standard for deciding if the accused knew he was terminating the life of a viable fetus.” Hollis at p. 64. The majority here states that a viable fetus is not a person as that term is used in stating the elements of murder at common law. It attempts to justify the Hollis holding. I must respectfully but totally disagree with that limited analysis of the common law. A search of the 9-page majority opinion does not reveal the use of the phrase “human being.” Webster’s New 20th Century Dictionary, unabridged, 2nd Ed. (1977) defines “human” as a human being with the characteristics of a person. There is little doubt that the words “person” and “human being” are synonymous. Common law principles have been in existence for centuries. However, application of the common law is a dynamic and expanding area.
Our consideration of the term “person” here should take us to any standard dictionary. All of the definitions relate to the term “person” in terms of a human being. The word “birth” or anything relating to birth is never mentioned, either directly or indirectly, in any of the numerous definitions of “person” or “human being.” See “The Right to an Abortion,” Prof. John Gorby, Southern Illinois Law Journal, Vol. 1979 No. 1.
The civil law has long recognized that the unborn child is a “person.” See Bon-brest v. Kotz, 65 F.Supp. 138 (D.C.Cir. 1946). The civil law and the law of property regard a child “en ventre sa mere,” as a human being from the moment of conception.
42 Am.Jur.2d Infants § 2, states that biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb and as a general rule of construction in the law, a legal personality is imputed to an unborn child for all purposes which would be beneficial to the infant after its birth. An unborn child at the time of the death of its parent has also been considered a “child” of the decedent in determining beneficiaries of an award in a wrongful death action or in a worker’s compensation case.
Prosser’s 4th Edition, published in 1971, summarizes the criticism of various judicial denials of recovery to the child. Prosser maintained that medical authority has long recognized that the child is in existence from the moment of conception and for many persons its existence is recognized by the law. The criminal law regards it as a separate entity and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent. Cf W. Prosser, Handbook of the Law of Torts (4th Ed.1971) pp. 336. In 1984, Prosser and Keaton noted that viability does not affect the question of the legal existence of the unborn. Prosser and Keaton on Torts (5th Ed.) § 55, p. 369.
Kentucky case law has followed such developments. This Court in 1955 stated that, “The most cogent reason, we believe, for holding that a viable unborn child is an entity within the meaning of the general word ‘person’ is because, biologically speaking, such a child is, in fact, a presently existing person, a living human being.” Mitchell v. Couch, Ky., 285 S.W.2d 901 (1955). Also see Cox v. Cooper, Ky., 510 S.W.2d 530 (1974); Rice v. Rizk, Ky., 453 S.W.2d 732 (1970).
The New Jersey Supreme Court not only recognized the personhood of the unborn child, but held that the right to life prevailed over constitutionally protected religious beliefs of the mother who had reject*883ed a blood transfusion. Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. den. 377 U.S. 985, 84 S.Ct. 1894, 12 L.Ed.2d 1032 (1964).
As observed by Dr. Seuss in the popular children’s story Horton Hears a Who, it is abundantly clear that “A person is a person no matter how small.”
The English common law of property has long recognized the unborn child as an autonomous human being. Accordingly, it simply mirrors the basic proposition that in law, as in ordinary affairs and language, the word “child” includes the conceived but as yet unborn child. In 1795 an English court interpreted the ordinary meaning of children in a Will to include a child in the womb. “En ventre sa mere who by the course and order of nature is then living, comes clearly within the description of children living at the time of the decease.” Doe v. Clark, 2H Bl. 399, 126 Eng.Rep. 617 (1795). Thereafter, other courts rejected the contention that this was a mere fiction of construction. “Why should not children en ventre sa mere, which means in its mother’s womb, be considered in existence? They are entitled to all the privileges of other persons.” Thelluson v. Woodford, 4 Ves. 227, 31 Eng.Rep. 117 (1798).
This brief review of the common law as it was applied in the 19th Century shows a desire to protect the unborn and demonstrates a continuing and almost universal concern about unborn human life. No real distinction can be made among the various stages of developing human life, before birth, or between prenatal or post-natal life. The separation of person from the concept of human being is completely artificial. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments to the Federal Constitution impose upon the state the duty of safeguarding it. Steinberg v. Brown, 321 F.Supp. 741 (D.C.Ohio, 1970)
Any historically correct interpretation of the Fourteenth Amendment to the Constitution should include the statement of its prime sponsor in the House of Representatives in 1865, Ohio Congressman John A. Bingham, who noted that the amendment was universal and applied to any human being. Congressional Globe, 39th Congress, 1st session, 1089 (1866).
Common law crimes were abolished in Kentucky when the penal code was enacted and a liberal construction of the Kentucky law was mandated. The Kentucky penal code is based on and frequently refers to the model penal code. The model code indicates that for purposes of homicide, a human being means a person who has been born alive. ALI, Model Penal Code, 1962. It is reasonable to say that this definition was considered by the drafters of the Kentucky Code but was not adopted. Consequently, I must conclude that the commentary reflects a legislative intent not to consider the concept of being born alive as previously followed to apply to the new Kentucky Penal Code.
An analysis of the common law in this situation is required only because the legislature has not yet defined the word “person.” The General Assembly did indicate that the provisions of the penal code should be liberally construed. Their purpose was to repudiate the common law principle of a strict construction of the penal laws. Cf my Dissent in Hollis, pp. 67 and 68.
If additional definition is required the legislature could define person and end the controversy. Legislatures in several states have modified the common law born-alive rule by enacting statutes which establish criminal penalties for the murder of an unborn child. California, Florida, Illinois, Mississippi and Oklahoma are among the state legislatures that have so acted. In South Carolina and Massachusetts, the courts have recognized feticide in the absence of any specific statute. Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1986); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984).
As noted'in the Hollis dissent, the existence of life in an unborn child at the stage of development of 28 weeks is a fundamental truth that does not require sophisticated interpretation. The legislature, as well as the public in general, should have reasonable acquaintance with the civil laws of *884Kentucky. It is a frequent presumption that the General Assembly is aware of the law at the time it adopts any other law. Consequently, it is reasonable to infer that the Kentucky Legislature intended the concept of personhood to be extended to the criminal law.
A further analysis of the historical background of the common law in general in regard to the question of person and human being indicates that the early scientific understanding relating to life was based on the theory of Aristotle who identified life with the animation of a formed fetus. Aristotle, History of Animals, § ,7.3583b. By the middle of the 17th Century, the beginning of an actual human life was equated with movement or “quickening” when the mother first felt the unborn child move in her womb. Consequently, the English common law established criminal penalties for the death of an unborn child after quickening. Lord Coke was recognized by Blaekstone in 1769 in his famous commentaries on the laws on England to the effect that life begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb. Blaekstone, Commentaries on the Laws of England, 124 (1769).
Medical science has made some advances since the 17th Century and we now realize that the child moves long before the mother feels quickening. The movement theory is relevant to the objective development or gestation of the child because it depends primarily on subjective impressions by the mother. Understandably our ancestors had to judge by the best information available to them at the time and so they protected unborn life under the criminal law from the period of quickening forward which coincided with their comparatively primitive, scientific understanding of what they believed was the time when individual life actually began.
It was only in the second half of the 19th Century that biological research advanced to the extent of understanding the actual mechanism of human reproduction and what really comprised the onset of gestational development. The mammalian egg was not identified until 1827. The cell was first recognized as the structural unit of organisms in 1839 and the egg and sperm were recognized as cells in the next two decades. See L. Arey Developmental Anatomy: A Textbook and Laboratory Manual of Embryology (6th Ed.1954). This new research at the time convinced medical personnel that the old quickening distinction embodied in the common law and some statutory codes was unscientific and indefensible. See R. Sauer, 28 Population Studies 53 (1974). We can learn from the mid-19th Century that a reasonable analysis of the laws indicated that the safety of the unborn child was a major concern of many medical and legal scholars. Although a number of early state laws contained a distinction based on quickening which gave a lower value to early fetal life, the large majority of state laws never made this distinction and most of these laws referred to a woman as “being with child” or some similar phrase which attributed a human status to the unborn child. See J. Moore The Origins and Evolution of National Policy (1978).
Consequently, I concur in the result achieved by the majority in affirming the Court of Appeals and the circuit court. I submit this concurring opinion to give a more complete analysis and review of the concept of person and human being in our society and in the law.
REYNOLDS, J., joins in this concurring opinion.