Edinburg Hospital Authority v. Treviño

GONZALEZ, Justice,

dissenting.

I join in Parts I and IV of the Court’s opinion. However, I do not join the remainder of the opinion for three reasons: First, it perpetuates the harsh, antiquated, “born alive” rule that allows recovery for the wrongful death of a child only if the child survives the womb. In my opinion, there should be no difference in tort law whether the child’s death occurs just before or just after birth. I would correct the errors the Court made in construing the Wrongful Death Statute in Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 506 (Tex.1987), and its progeny and hold that Edinburg General owed a duty to the mother, the father, and the baby. Second, the Court perpetuates the fiction that a full-term, pre-birth baby is nothing more than a glob of tissue that is part of the mother’s body and thus not worthy of legal protection. While I concur in the Court’s judgment allowing Mrs. Trevifio a cause of action for negligence, I disagree with the Court’s reasoning. Furthermore, I would also allow Mr. Trevifio to assert a cause of action for negligence to recover damages for the mental anguish he suffered as a result of his unborn baby’s death, though not under a bystander theory. Third, for the reasons stated in Justice *86Hecht’s concurring opinion, 941 S.W.2d at 90, I would hold that Edinburg Hospital Authority is a unit of local government subject to the bodily injury liability limits imposed by section 101.023(b) of the Texas Civil Practices and Remedies Code.

I.

The Court continues to perpetuate the flaw in this State’s jurisprudence which holds that parents cannot recover for the wrongful death of their unborn child. See Krishnan v. Sepulveda, 916 S.W.2d 478, 479 (Tex.1995); Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993); Blackman v. Langford, 795 S.W.2d 742, 743 (Tex.1990); Witty v. American Gen. Capital Distribs., Inc., 727 S.W.2d 503, 506 (Tex.1987); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23, 23 (Tex.1987). I wish we would not continue to follow this anachronistic rule of law and instead join the overwhelming majority of jurisdictions that recognize some form of action to recover damages for an unborn child’s death.1

The Court considers what other states have done in this regard, and concludes that it is up to our Legislature to create a cause of action for the wrongful death of a fetus. 941 S.W.2d at 79 n. 1. I agree with that principle, but the Legislature has already done its job. It has enacted a Wrongful Death Statute that allows a cause of action for damages “arising from an injury that causes an individual’s death.” Tex.Civ.Prac. & Rem.Code § 71.002(a). However, in Witty, we erred in our interpretation of the statute by ignoring precedent and abdicating our responsibility in a manner that perpetuates inequity. See Witty, 727 S.W.2d at 606-12 (Kilgarlin, J., dissenting). In Witty, we also ignored the maxim that “[t]his court should not be bound by the prior legislative inaction in an area like tort law which has traditionally been developed primarily through the judicial process.” Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983).

At common law, the rights of a human being existed despite its unborn status. As Sir William Blaekstone stated:

Life ... begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and ... if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the [ancient] law homicide or manslaughter_ An infant ... in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may *87have 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.

1 William Blackstone, Commentaeies *126-26.

Our Legislature has restricted the rights of a pre-born baby to protection under our state’s criminal law by specifically defining “individual” as “a human being who has been bom and is alive.” Tex.Penal Code § 1.07(26); Collins v. State, 890 S.W.2d 893, 897-98 (Tex.App.—El Paso 1994, no pet.). However, in a civil context, no such limitation exists with regard to the Wrongful Death Statute. Therefore, nothing precludes us from overruling Witty and its progeny to correct the errors our Court made in those eases. See Boyles v. Kerr, 855 S.W.2d 593, 595-96 (Tex.1993) (overruling St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex.1987) due to its erroneous interpretation of an earlier case and because it was out of step with most American jurisdictions); Moser v. U.S. Steel Corp., 676 S.W.2d 99, 101 (Tex.1984) (overruling Reed v. Wylie, 597 S.W.2d 743 (Tex.1980) and Acker v. Guinn, 464 S.W.2d 348 (Tex.1971) due to the uncertainty in determining title to minerals that resulted from those cases); Sanchez, 651 S.W.2d at 251 n. 2 (overruling J.A Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex.1968) and related cases).

II.

Because of advances in medical technology, it is no longer debatable that life begins before birth. Legal scholars have recognized as much: “So far as duty is concerned, if existence at the time of the tortious act is necessary, medical authority has long recognized that an unborn child is in existence from the moment of conception.” Keeton et AL., PROSSER AND KEETON ON THE LAW OF Torts § 55, at 367 (5th ed. 1984). One can debate the meaning and purpose of life, and what life is worth protecting, but under contemporary scientific standards, it is beyond dispute that a fetus is a human being from the moment of conception.2 It can be nothing else. See Klasing, The Death of an Unborn Child: Jurisprudential Inconsistencies in Wrongful Death, Criminal Homicide, and Abortion Cases, 22 Pepp.L.Rev. 933, 974 (1995). By eight weeks, the baby has its own beating heart, internal organs, external features, and a unique genetic code. See Reece ET AL., MEDICINE OF THE FETUS AND MOTHER 43-44,48, 53-54,117 (1992); Harrison et al. The Unborn Patient 43 (2d ed. 1990). Besides the heart, brain, internal organs, and limbs, which are clearly not part of the woman’s body, there are other parts such as the umbilical cord that are uniquely part of the baby’s body. Cunningham et al, Williams Obstetrics 137 (19th ed. 1993). Human embryos may be removed from the uterus and implanted in a surrogate mother who is then able to deliver a baby at full term. See generally, Scott et al, Danforth’s ObstetriCS and Gynecology 739-55 (7th ed. 1994). Thus, “it is absurd to extend the legal fiction ... that an unborn child is ‘a part of the mother’s bowels’ until the fetus is viable.” Rambo v. Lawson, 799 S.W.2d 62, 69 (Mo.1990) (Holstein, J., dissenting). I therefore reject the nonsensical view that within the realm of Texas tort law a dead unborn child is worth nothing, but an injured child born alive may sue and recover damages. See Witty, 727 S.W.2d at 507 (Kilgarlin, J., dissenting). As the Louisiana Supreme Court wisely stated:

*88The loss to the parents of a child who otherwise would have been bom normally is substantially the same, whether the tort-feasor’s fault causes the child to be bom dead or to die shortly after being born alive, and a cause of action for the loss should be recognized in either event, at least in the absence of specific legislation expressing a contrary intent. Moreover, a decision not to recognize a cause of action when the child is born dead would benefit the tortfeasor who causes a more serious injury, since the tortfeasor would have to pay damages if his fault causes a child to be bom disabled, but would not have to pay any damages if his fault causes prenatal death.

Danos v. St. Pierre, 402 So.2d 683, 638 (La.1981) (on rehearing) (footnote omitted).

We should admit the error of our ways. “[A] judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason_” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339 (1970). We should not let the mechanical application of stare decisis prevent us from overruling our earlier decisions such as Witty wherein we erroneously determined the meaning of a statute. See Monell v. Department of Soc. Servs., 436 U.S. 658, 695, 98 S.Ct. 2018, 2038, 56 L.Ed.2d 611 (1978) (holding that municipalities are “persons” under 42 U.S.C. § 1983 and are subject to liability, overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). We have even done so in this particular area of the law. In Leal v. C.C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820, 821 (Tex.1967), this Court held that parents of a viable infant bom alive have a cause of action under the Wrongful Death Statute if the baby later dies from injuries inflicted while in útero. In the process, we overruled Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944 (1935), citing one legal writer who remarked that “[sjeldom 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 towards allowing recovery for prenatal injuries to a viable infant.” Leal, 419 S.W.2d at 822. In Leal, we recognized an “impressive contemporary trend,” and should do so again now. Id. Thus, I would hold that Mr. and Mrs. Trevi-ño can assert a cause of action to recover damages for the wrongful death of their unborn child without forcing plaintiffs and sympathetic courts to look for creative ways to get around this harsh law and the fictions our Court has created.

III.

Additionally, while I agree with the Court that neither Mr. Treviño nor Mrs. Treviño can recover damages as a bystander, I do not believe that this conclusion should bar Mr. Treviño’s recovery. In the absence of a wrongful death cause of action that would allow fathers and mothers to recover for the loss of their unborn children, I would hold that Mr. Treviño can recover under a negligence theory based on the duty owed to him as the father of the unborn baby.

When a pregnant woman establishes a doctor-patient relationship with a physician for the prenatal care and delivery of a baby, the doctor owes a duty of care to the mother and baby. See Yandell v. Delgado, 471 S.W.2d 569, 570 (Tex.1971) (creating a duty to not inflict injury upon an unborn baby). Therefore, in reality, the unborn child is the doctor and hospital’s “second patient.” See Pritoh-ARD ET AL., WILLIAMS OBSTETRICS XÍ (17th ed. 1985). However, in Krishnan, the Court concluded that because there is no doctor-patient relationship between an obstetrician and the father of an unborn child, no duty is owed to the father. Krishnan, 916 S.W.2d at 482. This conclusion is wrong and serves only to perpetuate the myth that a father does not suffer mental anguish because of the death of his unborn child, and it amounts to unlawful gender discrimination. Id. at 483 (Gonzalez, J., dissenting). I believe that the better view is to recognize a duty to the father.

As we stated in Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex.1993), “certain relationships may give rise to a duty which, if breached, would support an emotional distress award.” We then stated in Krishnan that “[t]he physician/patient relationship is one such relationship.” Krishnan, 916 S.W.2d at 482. *89Under Yandell, a fetus injured while in úte-ro, regardless of viability at the time of injury, has a cause of action for personal injuries provided the child is born alive and survives. Yandell, 471 S.W.2d at 570. Therefore, an expansion of the physician’s duty is only necessary with regard to the expectant father. Otherwise, fathers are the only individuals in the father-mother-unborn child relationship to whom physicians owe no duty, and thus they are left without a remedy despite their painful loss.

The father should, in this narrow context, be owed a duty because of the special relationship that arises when a physician is entrusted by both parents to bring their child into the world. Texas courts have recognized in contractually based situations that a special relationship may “arise[] from the element of trust necessary to accomplish the goals of the undertaking.” English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983) (Spears, J., concurring). It is my view that such a relationship exists between a father of an unborn baby and his wife and baby’s physician, and that the father should be able to recover mental anguish damages for his loss. See Stuart v. Western Union Tel. Co., 66 Tex. 580, 585, 18 S.W. 351, 353 (1885) (holding that telegraph company’s failure to deliver a death message gave rise to mental anguish damages for brother of the deceased); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 907 (Tex.Civ.App.—Hous. [14th Dist.] 1969, writ ref'd n.r.e.) (allowing mother of deceased to recover mental anguish damages for funeral home’s negligent handling of her son’s corpse).

Other courts have recognized a cause of action by concluding that a father is a third-party beneficiary of the doctor-patient relationship. For example, California recognizes an extension of duty to a father as a third-party beneficiary of his wife’s doctor-patient relationship. Andalon v. Superior Court, 162 Cal.App.3d 600, 208 Cal.Rptr. 899, 905 (1984). In Andalón, the court concluded that both parents were direct victims of the doe-tor’s negligent prenatal care. Id. The court reasoned:

[The father’s] injury is not merely derivative of Mrs. Andalon’s injury but flows from his role as a participant in the reproductive life of the marital couple and its lawful choices. The burdens of parental responsibility fall directly upon his shoulders. The tort duty arising from the contract, between defendant and Mrs. Andal-ón, runs to him, not merely because of the foreseeability of emotional harm to him, but because of the nexus between his significant interests and the ‘end and aim’ of the contractual relationship. He is manifestly a direct beneficiary of tort-duty imposed by virtue of the doctor-patient relationship.

Id. This reasoning has been echoed in Louisiana. See, e.g., Skorlich v. East Jefferson Gen. Hosp., 478 So.2d 916, 918 (La.Ct.App.1985). In Skorlich, a father sued his wife’s doctor and the hospital for injuries his child received during the birth process. Id. at 916. The court concluded that the hospital and the doctor owed a duty of care to both the mother and the father. Id. at 918. The court reasoned:

In essence, the object of the undertaking is for the physician to treat the pregnancy which was created by the joint efforts of the father and mother. Although the father does not carry the fetus within his own body, it is his seed which created the fetus and thus imposed on him the obligation to care, protect and raise the fetus to adulthood. For that reason, the duty of the physician not to negligently injure the child during the birth process is a duty owed to the father as well as the mother. There is no reasonable basis for distinguishing between the father and mother.

Id. I agree with the results reached by these courts and would hold that doctors and hospitals owe fathers the same duty they owe to mothers in the context of prenatal care and delivery based on the special relationship created when a physician is entrusted by parents to bring a baby into the world.3

*90The evolution of tort law has made the concept of legal duty a particularly ripe area for continued judicial consideration. Indeed, “[t]he entire history of the development of tort law shows a continuous tendency to recognize as worthy of legal protection interests which previously were not protected at all.” Restatement (Seoond) of ToRts § 1 cmt. e (1965). As Dean Prosser observed, “[ejhang-ing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.” Prosser, Handbook of the Law of Torts § 53, at 327 (4th ed. 1971), quoted in Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 310 (Tex.1983) (imposing a duty on employers to act with reasonable care when exercising control over servants); see also Sanchez, 651 S.W.2d at 252 (allowing parents who lose minor child to recover for loss of society and mental anguish in response to the needs of modern society); Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex.1978) (extending to tenants’ guests a landlord’s duty owed to tenants to maintain portions of leased premises). It is only reasonable to conclude now that a duty is owed to a father by his unborn baby’s physician.

The recognition of such a duty is also justified under the balancing test this Court uses when deciding whether a duty exists. Under that test, the Court must balance the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

Mr. Treviño’s injury was foreseeable to Edinburg General. In its Policy and Procedure Manual for Labor and Delivery, Edinburg General lists its Standards of Nursing Care. The first standard states: “Patients and/or significant others can expect nursing care to be provided within a safe environment by protection from untoward events (falls and other incidents, errors in the administration of medications and treatments, cross contamination, and patient abuse)” (emphasis added). The fact that it set forth such standards shows that Edinburg General could foresee the risk that treatment errors posed not only for the patient, but also for the patient’s “significant other.”

I recognize that the social utility of Edin-burg General’s actions is great and that the magnitude and consequences of placing this burden on Edinburg General are significant. Nevertheless, these considerations are outweighed by the risk, likelihood, and foreseeability of the injuries involved. Thus, these factors weigh in favor of imposing a duty on Edinburg General. I would therefore hold that Edinburg General owed Mr. Trevino the same duty of care with respect to prenatal care and delivery that it owed his wife and baby, and I would allow him to assert a cause of action to recover damages for mental anguish. See Boyles, 855 S.W.2d at 598.

IV.

This modification of the law is necessary to eliminate confusion and gamesmanship, to clarify those events that justify mental anguish damages and those that do not, and to promote intellectual honesty in our courts. Because of the Court’s adherence to the view that there can be no recovery for the death of an unborn child, judges and lawyers are forced to craft rationales to maneuver around existing precedent. An example of this maneuvering is the decision in Krishnan. The Court concluded that Mrs. Sepulveda had pleaded physical injury to herself when in fact there was no mention of a physical injury to her in the pleadings. Krishnan, 916 S.W.2d at 489-90 (Gonzalez, J., dissenting). The reality is that in Krishnan, Mrs. Sepulveda’s pleadings contained no more an allegation of physical injury than Mrs. Trevi-ño’s pleadings in this case. The Court read such an allegation into Mrs. Sepulveda’s pleadings to allow her a chance to recover, and does the same in this case.

Mr. and Mrs. Trevino seek to be compensated for their emotional harm suffered as a result of the loss of the child they expected to have. As the Court notes, Mrs. Treviño (Mora)

sought to prove mental anguish damages in part by presenting evidence that she *91had made preparations in expectation of the arrival of her baby: she had set aside a room in her home for the baby and purchased furniture for the room. She also testified that the loss of the fetus ‘still hurts [her] like it was yesterday,’ that she carries a clipping of the funeral service with her, and that her marriage deteriorated after the loss of the fetus. This evidence relates to the grief that Mora felt over the loss of the fetus as a separate individual and not as part of her own body.

941 S.W.2d at 79.

Mr. Trevino also suffered emotional harm. His mother testified that he took the death of the baby “very hard. He wouldn’t eat. He would spend a lot of time crying like a baby.... He started drinking a lot and started having ... problems like drinking and like crying.... He was not the same person anymore.” 904 S.W.2d at 839. Oscar Trevino suffered as a result of this ordeal. He testified that the pain and anger he felt that day have continued to the present. Id.

As is evident, the Trevinos’ claims are indistinguishable from the plaintiffs’ claims in Krishnan, 916 S.W.2d at 479, Pietila, 851 S.W.2d at 187, Blackman, 795 S.W.2d at 743, Witty, 727 S.W.2d at 506, and Tarrant County Hospital District, 726 S.W.2d at 23, which we have held not to be actionable. The Court today reaffirms these cases but does so in doublespeak that is bound to confuse the bench, the bar and juries: While “Mora (Mrs. Treviño) has a negligence claim against the hospital for the personal injury she sustained in losing the fetus,” 941 S.W.2d at 79, “[t]he hospital could not be held hable for a negligent injury to Mora’s fetus.” 941 S.W.2d at 79.

The result of our case law is so harsh and inequitable that once again, as in Krishnan, the Court finds a way to circumvent precedent to reach the desired result. The Court is allowing plaintiffs to do through the back door what they cannot do through the front door. With a wink and a nod, the Court today asks judges and juries to pretend that the emotional harm and loss to the mother are caused by two injuries, one which is actionable and the other not. I believe juries will now compensate both injuries within one calculation, unable to perform the mental gymnastics the Court asks of them.

In truth, there is only one injury, one “occurrence in question.” It is unreasonable to expect the trier of fact to ascertain damages for mental anguish due to the mother’s personal injury (from the loss of her baby), while at the same time not consider any anguish the baby’s death itself might have caused. As I wrote in Krishnan:

What will the jury charge for this kind of ease read in the future? Since this Court leaves Pietila, Blackman, Witty, and Tarrant County Hosp. Dist. on the books, of necessity a trial court will have to instruct the jury not to award damages to the mother “by way of consolation for the death” of the unborn baby or for “any sorrow, anguish, or grief suffered as a result” of the baby’s death. See Tex.Pattern J. Charges § 81.04 (1982). This instruction was made obsolete in the context of parents’ wrongful death actions for the death of a child following its birth, see id. cmt. (Supp.1984) (citing Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983)), but it must be resurrected again to respond to the Court’s writing today. Moreover, in light of today’s opinion holding that a mother is not entitled to recover damages for the loss of society, companionship, and affection due to the unborn child’s death, 916 S.W.2d at 482, a careful trial judge may well add the following instruction:
Do not include any pecuniary loss resulting from the death of [the baby]. Do not consider the love, comfort, companionship, and society that [the mother] would have received from [the baby]. Disregard any mental anguish suffered by [the mother] in the past or which will be suffered in the future resulting from the death of [the baby].
See id. § 83.03A (Supp.1984) (stating the elements of recovery that the surviving parents of a minor child are entitled to in a wrongful death action). Although this instruction will be generally troublesome, the mental anguish component will probably be the most problematic. This Court holds that the injury resulting in the death of an unborn child due to a physician’s *92negligent prenatal care is a personal injury to the mother. Presumably, therefore, a trial judge will ask the general question for personal injury damages recoverable for a physician’s negligence. The definition of mental anguish will also appear in the charge. The definition could state:
Mental anguish means an emotional pain, torment, and suffering experienced by [the mother] as a result of the occurrence in question.
Alternatively, it could state:
Mental anguish is a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.
See Treviño v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex.Civ.App.—Corpus Christi 1979, no writ). This Court today rules that the “loss of the fetus” is a recoverable injury to the mother, 916 S.W.2d at 482, but that the death of the baby itself is not. Therefore, a trial judge probably should also add an exclusionary instruction, to wit: “Do not include any amount for mental anguish not resulting from the injury to the mother, if any, that resulted from the occurrence in question.” ... It will not be surprising if the forgoing [jury charge] profoundly confuses juries, attorneys, and trial and appellate courts.

Krishnan, 916 S.W.2d at 488-89 (Gonzalez, J., dissenting).

The approach I propose today is necessary to correct two grave harms. First, Krishnan and this case cause confusion due to the Court’s recognizing a cause of action that looks and feels like a claim for the wrongful death of an unborn baby, while simultaneously denying the existence of such a claim. Second, we must dispel the fiction that an unborn child is simply a mass of tissue or just another part of its mother’s body somehow not worthy of legal protection. One would think that an enlightened Court would recognize that at some point along the continuum from conception to birth, the unborn baby is worthy of legal protection.4 The medical evidence undermining the notion that emotional harm from the death of one’s unborn baby is caused by two distinct injuries is too great to continue this legal fiction any longer. In developing tort law, this Court is empowered to decide that Texas has an important, if not compelling, interest in protecting the life of an unborn child throughout all stages of pregnancy. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 869-76, 112 S.Ct. 2791, 2816-20, 120 L.Ed.2d 674 (1992); Webster v. Reproductive Health Servs., 492 U.S. 490, 519, 109 S.Ct. 3040, 3057, 106 L.Ed.2d 410 (1989); Roe v. Wade, 410 U.S. 113, 162-63, 93 S.Ct. 705, 731-32, 35 L.Ed.2d 147 (1973). This interest has both a logical and biological justification, Roe, 410 U.S. at 163, 93 S.Ct. at 731-32, and its importance is not diminished merely because it is enforced in an action for damages at common law rather than by other regulatory means. I would therefore concede our errors, overrule Witty and its progeny, and join the overwhelming and growing majority of jurisdictions which allow recovery for the death of an unborn child.

For the foregoing reasons, I would affirm in part and reverse in part the judgment of the court of appeals.

. See Tenn.Code Ann. § 20-5-106 (1994); Wade v. United States, 745 F.Supp. 1573, 1579 (D.Haw.1990); Espadero v. Feld, 649 F.Supp. 1480, 1484 (D.Colo.1986); Simmons v. Howard Univ., 323 F.Supp. 529, 529 (D.D.C.1971); Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354, 358 (1974); Summerfield v. Superior Court of Maricopa County, 144 Ariz. 467, 698 P.2d 712, 724 (1985); Hatala v. Markiewicz, 26 Conn.Supp. 358, 224 A.2d 406, 407-08 (1966); Worgan v. Greggo & Ferrara, Inc., 128 A.2d 557, 558 (Del.Super.Ct.1956); Greater Southeast Community Hosp. v. Williams, 482 A.2d 394, 397-98 (D.C.1984); Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11, 15 (1982); Seef v. Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510, 511 (1991); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20, 26-27 (1971); Dunn v. Rose Way, Inc., 333 N.W.2d 830, 833-34 (Iowa 1983); Hale v. Manion, 189 Kan. 143, 368 P.2d 1, 3 (1962); Mitchell v. Couch, 285 S.W.2d 901, 906 (Ky.1955); Danos v. St. Pierre, 402 So.2d 633, 639 (La.1981); State ex rel. Odham v. Sherman, 234 Md. 179, 198 A.2d 71, 73 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916, 920 (1975); O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785, 786 (1971); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 841 (1949); Terrell v. Rankin, 511 So.2d 126, 127 (Miss.1987); Connor v. Monkem Co., 898 S.W.2d 89, 92 (Mo.1995); Strzelczyk v. Jett, 264 Mont. 153, 870 P.2d 730, 733 (1994); White v. Yup, 85 Nev. 527, 458 P.2d 617, 623-24 (1969); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249, 251 (1957); Salazar v. St. Vincent Hosp., 95 N.M. 150, 619 P.2d 826, 830 (App.1980); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, 495 (1987); Hopkins v. McBane, 359 N.W.2d 862, 865 (N.D.1984); Werling v. Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053, 1056 (1985); Evans v. Olson, 550 P.2d 924, 927-28 (Okla.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636, 640 (1974); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1089 (1985); Presley v. Newport Hosp., 117 R.I. 177, 365 A.2d 748, 754 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42, 45 (1964); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 792 (S.D.1996); Vaillancourt v. Medical Ctr. Hosp., 139 Vt. 138, 425 A.2d 92, 95 (1980); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266, 268 (1975); Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 535 (1995); Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107, 112 (1967).

. Excerpts from medical textbooks illustrate the present scientific view that a baby’s life begins at the moment of conception:

Human development begins at conception or fertilization, the process during which a male gamete or sperm (spermatozoon) unites with a female gamete or oocyte (ovum) to form a single cell called a zygote (Gr. zygótos, yoked together). This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.

Moore & Persaud, The Developing Human 14 (5th ed. 1993).

In the first pairing, the spermatozoon has contributed its 23 chromosomes, and the oocyte has contributed its 23 chromosomes, thus reestablishing the necessary total of 46 chromosomes. The result is the conception of a unique individual, unlike any that has been born before and unlike any that will ever be bom again.

Krieger, The Human Reproductive System 88 (1969).

. Today the Court does not pass on the merits of a third-party beneficiary claim. Thus, this is an open question. 941 S.W.2d at 79. Perhaps there is hope that in the future the Court will allow fathers to assert such a cause of action to recover mental anguish damages.

. Indeed, the high courts of several states now allow wrongful death protection for nonviable fetuses. See Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 533-34 (1995) (18-22 week old fetus); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 791 (S.D.1996) (7½ week old fetus); Connor v. Monkem Co., 898 S.W.2d 89, 92-93 (Mo.1995) (16 week old fetus).