dissenting.
We are again being called upon to extend the parameters of our tort law. This is not a unique request, nor is it a parochial trend. Within the last fifty years the expansion of the law of tort throughout this country, particularly as it relates to recovery for negligently inflicted injury, has been significant. See, e.g., Negligent Infliction of Emotional Distress: Liberalizing Recovery Beyond the Zone of Danger Rule, 60 Chi-kent L.Rev. 735-53 (1984); Lambert, Trends and Developments: Touchstones of Tort Liability, 33 A.T.L.A. 378 (1970); Wade, Some Recent Changes in the Law of Torts, 38 Miss.L.J. 565 (1967); York, Extension of Restitutional Remedies in the Tort Field, 4 U.C.L.A. L.Rev. (1957). In this instance we are being called upon to recognize a cause of action this Court has consistently refused to acknowledge since the early 1960’s. Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia, 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, *231415 Pa. 47, 202 A.2d 9 (1964). This is a propitious time to reappraise the concepts and to clarify the objectives of tort law.
The compensation of one injured because of the negligence of another is merely a reflection of the American sense of justice. If one citizen through inadvertence or carelessness causes damage to another it is appropriate to require the offending party to restore the victim as near as possible to his or her prior state. Tort law was never intended to unjustly enrich, or to provide the occasion for the fulfillment of all fanciful aspirations. Hopefully, the work ethic is still paramount in American thinking, and should therefore be reflected in American jurisprudence.
Because the offending party frequently did not possess the wealth to fully compensate the victim for the loss, the concept of insurance evolved. However, the availability of the funds to recoup for losses was not intended to justify an overstatement of the claim or to magnify the extent of the loss.
Regrettably, the concept of a “deep pocket” has become pervasive in this area and has frequently influenced decisions as to when a cause of action should arise and as to the appropriate recovery to allow for the claimed loss. The “deep pocket” theory springs from the “desire to insure that victims of tortious injury can reach a defendant with sufficient wealth to provide adequate compensation.” Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S.Cal.L.Rev. 1, at 64. See also, Sales and Cole, Punitive Damages: A Relic That Has Outlived Its Origins. 37 Vand.L.Rev. 1117. This motive has had a tendency to obscure the basis of the finding of liability and the extent to which reimbursement can be justified.
Moreover, another basic fallacy with the thinking of those who propose unlimited expansion of tort recovery is the failure to recognize that it is the consumer public that ultimately must bear the loss for the inflationary spiral that follows in its wake. More frequent judgments with escalating awards creates a situation that all policy holders, and *232not the insurance companies, ultimately must meet. The rising costs, generated by increasing numbers of law suits and higher judgments, are tolerable provided that the occasion for the injury justifies the action and the recovery reflects the actual loss. If either is out of kilter an undue burden is unfairly passed on to the innocent citizen policy holders.
Turning to the instant case, I would agree with the majority that it would be unfair to preclude a just recovery for an injury negligently caused because the expiration of the life of the child occurs prior to, rather than after, birth. However, I do not believe such a disparity does in fact exist. The legitimate elements of compensatory damages 1 following from the injury are recoverable in either event. The only difference is that where the child expires before birth these elements are subsumed in the claim of the mother.
The pain and suffering and emotional distress caused by the negligently induced trauma sustained by the child that survives the birth would fall within the claim brought on behalf of that child in the Survival or Wrongful Death Actions. Wrongful Death Act, Act of July 9, 1976, P.L. *233586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8301; Survival Statute, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8302. Where the child does not survive birth, all of the critical events transpired while the child was a part of the mother’s body. Any trauma to the child en ventre sa mere is a trauma to the body of the mother carrying that child, which can be claimed in an action by that mother in her own right. The same advancements in medical science, which the proponents of the creation of this new cause of action offer as one of the reasons for such an extension, (see e.g., Scott v. Kopp, supra at 492, 431 A.2d at 962 (Larsen, J., dissenting)), are equally accessible to identify the full impact of the offending force upon the body of the mother.2
Thus what at first blush may appear to be an unfair disparity in treatment between the stillborn and the child born alive, upon a closer analysis is in reality neither unfair nor does it produce a disparity. In the unhappy event that the child does not survive birth, all of the legitimate losses are compensable and recoverable.
II.
My second concern is that the extension here urged falls within the province of the legislature and not the courts. It would appear that what we are presently being requested to do is a matter appropriately addressed to the legislative branch of government.
*234In Scott v. Kopp, supra, we held that parents of a stillborn child who died as the result of injuries received en ventre sa mere had no right of recovery on behalf of the child under the Pennsylvania Survival Statute or Wrongful Death Act since there was no independent life in being, surviving birth, which could have brought the action prior to death. See also Marko v. Philadelphia Transportation Company, supra; Carroll v. Skloff, supra. The statutes controlling the instant case are substantially similar to those in effect at the time of the Scott decision.3
We have consistently held that where the Court of last resort has given an interpretation to a statute and the legislature thereafter leaves it unchanged, it is presumed that the legislature accepts that interpretation. DiGirolamo v. Apanayage, 454 Pa. 557, 312 A.2d 382 (1973); Commonwealth v. Wanamaker, 450 Pa. 77, 296 A.2d 618 (1972); *235Pennsylvania Labor Relations Board v. Uniontown Hospital Ass’n., 432 Pa. 146, 247 A.2d 621 (1968); Commonwealth v. Willson Products, Inc., 412 Pa. 78, 194 A.2d 162 (1963); Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962); In re Loeb’s Estate, 400 Pa. 368, 162 A.2d 207 (1960); McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 154 A.2d 497 (1959). The General Assembly has had ample opportunity to amend these statutes to permit wrongful death and survival actions on behalf of stillborn infants since our decision in Carroll v. Skloff, supra, over twenty years ago. In fact, in 1981, the House of Representatives’ Health and Welfare Committee proposed an amendment of the Wrongful Death Statute, House Bill No. 1727, Session of 1981, to allow a stillborn fetus to bring a cause of action, but the House allowed this proposal to remain within the Committee and face certain death at the end of the 1981-82 legislative session. Thus it is clear that, until the majority’s decision today, this Court had correctly gauged the legislature’s intent.
Viewed from this perspective, the majority has entered the realm of statute-making, a function long recognized not to be performed by this Court. Davis v. Sulcowe, 416 Pa. 138, 205 A.2d 89 (1964); Dally v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co., 374 Pa. 476, 97 A.2d 795 (1953); Commonwealth ex rel. Cartwright v. Cartwright, 350 Pa. 638, 40 A.2d 30 (1944); 1 Pa.C.S.A. § 1921(b).
It is a cardinal principle that fundamental public policy should be ascertained by and articulated through legislative fiat and not through judicial edict. Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978); Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972); Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964); Lurie v. Republic Alliance, 412 Pa. 61, 192 A.2d 367 (1963); Hayes v. Scranton, 354 Pa. 477, 47 A.2d 798 (1946); Mamlin v. Genoe, 340 Pa. 320, 17 *236A.2d 407 (1941). For illustration, the majority appears to assign this “new cause of action” based upon the viability of the fetus. This option in favor of viability as opposed to conception touches upon one of the most controversial questions of our day. Clearly, disputes of this nature cannot satisfactorily be resolved by court decisions. Cf. Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 493, 453 A.2d 974, 980 (1982) (Nix, J., concurring and dissenting); Speck v. Finegold, 497 Pa. 77, 93, 439 A.2d 110, 122 (1981) (Nix, J., dissenting opinion).
When we cut through the semantics, the essence of the issue presented is the right to transmit a property interest after death, in this case a chose in action. Although we have a constitutionally protected right to possess and dispose of property during our lifetime, U.S. Const. Amend. 5; Pa. Const. Art. I, § 1; Parker v. Hough, 420 Pa. 7, 215 A.2d 667 (1966); Andress v. Zoning Board of Adjustment of City of Philadelphia, 410 Pa. 77, 188 A.2d 709 (1963); Sandyford Park Civic Association v. Lunnemann, 396 Pa. 537, 152 A.2d 898 (1959); Commonwealth v. Zasloff 338 Pa. 457, 13 A.2d 67 (1940); Williams v. Samuel, 332 Pa. 265, 2 A.2d 834 (1938), our right to pass property after death must be in accordance with statutory law. In Re Collins Estate, 393 Pa. 195, 200, 142 A.2d 178, 181 (1958); In Re Tacks Estate, 325 Pa. 545, 548, 191 A. 155, 156 (1937); Boyd’s Estate, 270 Pa. 504, 507, 113 A. 691, (1921); In Re Crossley’s Estate, 135 Pa.Super. 524, 527, 7 A.2d 539, 540 (1939). See also, 1 W. Page, Page on Wills, § 3.1 (1960). Here, the existing statutes have not provided for such a transmittal. Scott v. Kopp, supra; Marko v. Philadelphia, supra; Carroll v. Skloff, supra. I can fanthom no reason for this Court to intrude upon the clear legislative jurisdiction where in fact the presently recognized cause of action is available to fully and fairly compensate the loss.
For the above stated reasons, I dissent.
HUTCHINSON, J., joins this dissenting opinion.. Compensatory damages, in all cases of civil injury or breach of contract, are those damages awarded to give compensation for pecuniary loss; that is, to put the plaintiff in the same position, so far as money can do it, as he or she would have been if the contract had been performed or the tort not committed. Sedgwick on Damages (9th ed., p. 25). Chief Justice Shippen, in Bussy v. Donaldson, 4 Dall. 206, 207, 1 L.Ed. 802 (1800), said of compensation, “As to the assessment of damages, it is a rational and legal principle, that the compensation should be equivalent to the injury ... it will be found safest to adhere to it, in all cases proper for a legal indemnification, in the shape of damages.” In Forsyth v. Palmer, 14 Pa. 96, 97 (1850), Chief Justice Gibson observed, “The measure is the actual, not the speculative loss. The primary end of damages is compensation; and not of every injurious consequence that may have been suffered ..." Chief Justice Gibson further observed that the "machinery of law” that the “legal injury" sets in motion “is necessarily imperfect; for much suffering, vexation, and anxiety is often inflicted, which cannot be subjected to its action." Thus, as noted in Kountz v. Kirkpatrick & Lyons, 72 Pa. 376, 387 (1872), "[actual] compensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation must be such as truly reaches this end." See generally Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1977).
. I note that Justice Zappala in his concurring opinion implies that if the child survives, both mother and child could each bring an action for this same injury citing this Court’s decision in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). I must confess that I do not understand the applicability of Sinn in this context. In Sinn mother and child were assaulted by distinctly different forces, albeit arising from the same incident. The child was struck by the vehicle itself, whereas the mother’s emotional distress arose from the impact of the event. See generally, Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Additionally, there is no question as to the mother’s right to recover for the emotional distress. The trauma was to her body thus under the impact rule emotional distress resulting therefrom is unquestionably recoverable. W. Prosser & W. Keeton, The Law of Torts, § 54 at 362-63 (5th ed.1984); Restatement (Second) of Torts, § 456 (1965).
. The Wrongful Death Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8301(a), currently provides:
§ 8301 Death Action.
(a) General Rule — An action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.
The Survival Statute, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8302, currently provides:
§ 8302 Survival Action.
All causes of action or proceedings real or personal, shall survive the death of the plaintiff or the defendant, or the death of one or more joint plaintiffs or defendants.
The corresponding prior statutes read:
§ 1601. Action may be brought after death of party injured Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.
Wrongful Death Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601 (Repealed), and
§ 3371. Actions which survive
All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
Pennsylvania Survival Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 3371.