specially concurring:
I agree with the majority decision insofar as it is mandated by this court’s previous holding in Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368. However, I must again object, as I did in my dissent in that case, to the use of the viability standard. I believe that it is incorrect to premise the existence of a cause of action for wrongful death on such an uncertain and indefinite status. I believe that the continued use of this test is inconsistent with this court’s decision in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, and with prenatal injury cases previously decided by our appellate courts (Sana v. Brown (1962), 35 Ill. App. 2d 425; Daley v. Meier (1961), 33 Ill. App. 2d 218). Also, I find the use of the viability standard inconsistent with expressed legislative intent to protect the unborn from the point of conception.
As the law currently stands in Illinois, recovery for wrongful death of an unborn child requires a finding of viability at the time of injury. (Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368.) Chrisafogeorgis was, to a large degree, based upon the premise that an unborn child becomes a “person” only when it becomes viable:
“[W]e consider more realistically and reasonably that viability is the appropriate line of demarcation. It is the time at which a child is capable of being delivered and remaining alive separate from and independent of the mother. This can be said to be the critical stage of a ‘person’ within the meaning of the Wrongful Death Act’s language ‘Whenever the death of a person ***.’” 55 Ill. 2d 368, 374-75.
My major objection to the viability standard, as I indicated in my dissent in Chrisafogeorgis, is that the point at which a fetus becomes viable is highly uncertain, depending upon such factors as the health of the mother and child. As Mr. Justice Moran noted, writing for the plurality in Renslow, viability is also dependent upon the weight and race of the child and the techniques which are presently available to sustain the life of the fetus outside the womb. Indeed, the legislature, in defining viability, makes specific reference to such techniques. It defines viability as “that stage of fetal development when the life of the unborn child may be maintained outside the womb by natural or artificial life-supportive systems. ” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 81—22(2).) It is eminently clear that advances in medical technology will continue to move the point of viability closer and closer to conception. For this court to base its determination that an unborn child becomes a “person” only at the point of viability is to premise the right to maintain an action for wrongful death on an uncertain and continually changing standard.
Secondly, the requirement of viability for maintenance of a wrongful death action contrasts sharply with Illinois cases allowing recovery for injuries to nonviable fetuses which are later born alive. As I noted in my dissent in Chrisafogeorgis, the First District Appellate Court has held that recovery for prenatal injuries does not require a showing of viability at the time of injury if the child is later born alive (Sana v. Brown (1962), 35 Ill. App. 2d 425; Daley v. Meier (1961), 33 Ill. App. 2d 218). These cases are apparently supported by this court’s decision in Renslow, even though that case dealt with negligent acts occurring before conception.
The majority in the present case attempts to distinguish recovery for personal injury from recovery for wrongful death by pointing out that in the former the child suffers the burden of mental or physical defects:
“In our opinion there is a clear distinction between a common law cause of action on behalf of a live-bom infant for injuries suffered prior to its having become viable, and a statutory cause of action for the destruction of a fetus not yet viable. The extent of the loss incurred by a living child burdened with mental or physical defects resulting from a prenatal occurrence is not affected by whether the injuries were suffered prior to or after he became viable.” 71 Ill. 2d at 504.
This distinction is faulted by the same logic which compelled the majority of this court in Chrisafogeorgis to extend a cause of action for wrongful death for the first time to an unborn fetus. The court stated:
“Another ground often expressed for permitting a right of action is that a holding would be logically indefensible which would allow a right of action where an injured child survives delivery for even the briefest time and would deny an action where the viable child does not survive delivery.” 55 Ill. 2d 368, 373.
The illogic of such a distinction is also illustrated by the case of Amann v. Faidy (1953), 415 Ill. 422. In that case, this court allowed recovery for the wrongful death of an infant who was injured while viable, bom alive and died shortly after from the injuries. Under the majority decision, however, recovery for wrongful death for a similar infant injured just prior to viability who is bom alive and dies shortly thereafter may not be had. In both cases, the negligent acts, the causation, and the injuries may have been exactly the same, yet recovery is banned in the later situation by the arbitrary viability requirement. In addition, as I pointed out earlier, viability is so uncertain that it will be difficult in many cases to determine if recovery shall or shall not be allowed.
Lastly, I wish to point out that the judicial determination that a nonviable fetus is not a person is directly contrary to legislative intent as clearly expressed in “An Act in relation to abortions ***” (Ill. Rev. Stat. 1977, ch. 38, par. 81—21 et seq.). This act, enacted subsequent to Chrisafogeorgis, was designed to conform Illinois law with the United States Supreme Court case of Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, permitting abortions under certain circumstances. While noting that the legislation was mandated by Roe, the General Assembly specifically stated that it considers a fetus to be a person from the point of conception:
“[T] he General Assembly of the State of Illinois do solemly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State.” (Ill. Rev. Stat. 1977, ch. 38, par. 81—21.)
Such clearly expressed legislative concern for the unborn must be considered by this court in construing the Wrongful Death Act, especially since this enactment was post -Chrisafogeorgis.
In light of the uncertainty, inconsistencies and conflict with legislative intent which result from use of the viability standard, I suggest that this court abandon the requirement of proving viability in wrongful death cases. I believe that this court must adopt a fairly definite standard for determining if the cause of action for wrongful death exists. While it is not this court’s function to assume the role of the legislature by decreeing when a fetus becomes a person, logic and conformity with prenatal injury cases and the clearly expressed legislative intent seem to require that we extend a cause of action for the wrongful death of an unborn child to the point of conception.