(concurring). I concur in the opinion of Justice Proctor, except that I prefer to deal more specifically with the problem of criminality of a eugenic abortion of the type involved in this case.
It may be noted that the dismissal of the suit as to the adult plaintiffs in the trial court did not take place at the close of the plaintiffs’ proof. The factual defense was presented, and thereafter defendants’ motion to dismiss was granted. Thus on one side of the controversy we have Mrs. Gleitman’s assertion (1) that she told Dr. Cosgrove of her experience with German measles (rubella) when she first consulted him about her pregnancy, (2) that she inquired of Dr. Cosgrove on that occasion and thereafter whether her child would be defective as a result of the disease, and (3) that he and later Dr. Dolan assured her there was nothing to be concerned about, the child would not be affected. On the other side, we have Dr. Cosgrove’s testimony that when Mrs. Gleitman informed him of the rubella, he advised her that the incidence of damage to babies of mothers who had the disease in the early stages of their pregnancy was about 20%. He said also that he told her there were places where abortions were performed for that reason, but that he did not consider it proper to handle obstetrics cases in that way: he did not think that in order to eliminate one baby who might be deformed, the destruction of four more babies who might be perfectly normal was “a very reasonable way to conduct the practice of medicine.” Not only did he make it plain that he would not do such an abortion, but he also testified that in his view the operation would be criminal in New Jersey and in every other state as well.
On this appeal, as Justice Proctor pointed out, the issue of credibility between Mrs. Gleitman and the doctors is not before us. The defense version of the affair is mentioned primarily because of its bearing on another aspect of the case to be discussed hereafter. The narrow question presented to this Court for decision is: assuming the truth of Mrs. Gleitman’s testimony, does the law recognize a cause of action against a *33doctor who fails to tell a pregnant wife who has had rubella in the first trimester of her pregnancy that her child may be defective, and who fails to tell her she may elect to have an abortion performed by him under proper auspices or, if he will not do so, by another physician who is not opposed to the operation, or in some other state or country where such operations are sanctioned. If there is such a legally cognizable claim against the doctor, then the trial court’s judgment must be reversed and the ease remanded for trial by a jury which will resolve the matter of credibility between the disputants.
I
Under the existing statute, N. J. S. 2A:87-1, it is a crime to commit an abortion “without lawful justification.” Plaintiff Mrs. Gleitman contends that contraction of German measles during the first trimester of her pregnancy constituted lawful justification for the destruction of her child in this State by a New Jersey doctor. She claims further that even if this type abortion is criminal in this State, it was malpractice for Doctors Cosgrove and Dolan not to advise her that as a result of the rubella her child might be defective and that in such cases it is or may be possible in some states or countries to obtain an abortion. Resolution of these problems requires a study of the background of our abortion law.
The statutory crime of abortion had its origin in 1849. See L. 1849, p. 266, which became effective on March 1, 1849. The act said:
“That if any person or persons, maliciously or without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, ox-noxious thing; and if any person or persons maliciously, and without lawful justification, shall use any instrument, or means whatever, with the like intent * * * shall, on conviction thereof, be adjudged guilty of a high misdemeanor; and if the woman die in consequence thereof, shall be punishable by fine, not exceeding one thousand dollars, or imprisonment at hard labour for any term not exceeding fifteen years, or both; and if the woman doth not die in consequence thereof, such offender shall, on conviction thereof, be adjudged guilty of a misde*34meanor, and be punished by fine, not exceeding five hundred dollars, or imprisonment at hard labour, for any term not exceeding seven years, or both.”
The impetus for the legislative action is interesting and significant. Abortion was a crime at common law, but guilt was subject to certain exceptions. During 1848 or early 1849 one Cooper was indicted for abortion. The Supreme Court quashed the indictment because under the common law the crime was not present unless the child was quick within the mother’s womb when the abortion was committed. The court said the offense was against the life of the child, and in contemplation of law life commenced “at the moment of quickening, at that moment when the embryo gives the first physical proof of life.” 1 Since there was no quickening, there was no life to be destroyed and consequently the defendant could not be convicted. The Chief Justice, who wrote the opinion, suggested that if the good of society required elimination of the evil of prequickening abortion he supposed it was “far better than it should be done by legislative enactments” rather than by judicial extension of the common law penal code. And he said the court deemed it “unwise upon this subject to occupy debatable ground.” State v. Cooper, 22 N. J. L. 52 (Sup. Ct. 1849).2
*35The response of the Legislature, once it foresaw the result in Cooper, was galvanic. The statute quoted above was enacted even before the court announced its decision. The requirement for quickening of the fetus as an indispensable element of the crime was eliminated. Causing “the miscarriage of a woman then pregnant with child * * * without lawful justification” was established as the criminal offense. In 1872 a change was made in the act. The original statute declared that if the woman died as the consequence of the abortion, one penalty would follow; if she did not die, a lesser penalty was specified. The 1872 supplement provided for a certain penalty if the woman or child died; and a lesser one if neither died. Since that time there has been no change of substance in the description of the offense. The 1952 revision of the Crimes Act, which put the statute in its present more concise form, eliminated only a redundancy in the description of the crime. Whereas the earlier laws spoke of causing or procuring the miscarriage of “a woman then pregnant with child,” the revision put the crime in terms of causing or procuring “the miscarriage of a pregnant woman.” N. J. S. 2A:87—1. However, the revision continued in force the provision for more severe punishment if the “woman or child shall die” as a consequence of the abortion.
The 1849 act and the subsequent legislative treatment reveal an unquestionable intention to enlarge the scope of the common law crime of abortion. An equally obvious purpose was to enlarge the protection offered by the common law so as to include the embryo or fetus en ventre sa mere. The references to “pregnant with child” and to the more severe penalties if the mother or child died from an abortion have deep significance. Obviously the pregnancy contemplated by the Legislature was the condition which begins at the moment of conception and terminates with delivery of the child. State v. Loomis, 90 N. J. L. 216 (E. & A. 1916). The lawmakers were saying as a matter of public policy that the moment the womb becomes instinct with embryonic life, it *36should be unlawful to interrupt the ordinary development of that life "without lawful justification” (of which more later). In my judgment, the most important consequence ■of the statute is the legislative recognition and sequential incorporation in the law of the principle that the child as a legal entity begins at conception; as of that time it has a legal existence as a separate entity, as distinguished from a mere part of its mother’s body. Distinctions based upon physical status during gestation such as embryo, fetus and viability lost their earlier impact on the crime of abortion. It was not until relatively recent years that the judiciary became aware of the full portent of the legislation.
The former Supreme Court in Cooper commented that for many purposes in the law of property and inheritance, the child in uiero had been considered in being. But the Court felt itself bound by the common law precedent requiring the fetus to be quick before it could be considered legally in being for administration of the criminal law of abortion. The immediate response of the Legislature in 1849 to the circumstances of Cooper malms plain its design that the law should accept the child as in being from the instant of conception. Seven years ago our Court by unanimous vote gave full recognition to the principle that the unborn child at all stages of its gestative life is a legally existing entity. Smith v. Brennan, 31 N. J. 353 (1960).3
Rather extensive research satisfies me that at common law the only defense to an indictment for abortion was that destruction of the fetus was reasonably believed by the operat*37ing physician to be necessary to preserve the mother’s life.4 Although there is no New Jersey ease expressly stating this rule, Chief Justice Case speaking for the former Supreme Court in State v. Brandenburg, 137 N. J. L. 124, 126-127 (1948), in sustaining an abortion conviction rejected the contention that the following jury charge was erroneous:
“Lawful justification is used in the sense of necessity. It is a defense that the destruction of the child’s life was necessary to save that of the mother, but it should be remembered that necessity of this class must be strictly limited. The right can only be exercised in extremity.”
The Court found it “unnecessary to consider whether under our statute and the construction thereof given by our courts threatened impairment of a woman’s health, as distinguished from the saving of her life, constitutes lawful justification.”
Weighty corroboration for the view that the only defense at common law to the charge of causing an abortion was that it was done to save the life of the mother is to be found historically in the action taken by legislatures throughout the country. Since the early 1800’s 46 states have adopted statutes making abortions criminal unless performed to save the mother’s life. Seven states added, as another justification, aborting to save the life of the child. A few states and the District of Columbia sanction as a defense that the abortion was necessary to preserve the health of the mother or to pre*38vent serious and permanent bodily injury. Four states, including New Jersey, provide no specific exception to the general prohibition against abortion. Annotation, Tentative Draft, Model Penal Code, supra, at pp. 152-153; George, “Current Abortion Laws: Proposals and Movements for Reform,” 17 W. Res. L. Rev. 371, 375-376 (1965). These four speak in terms of “unlawful” abortion, “unlawfully” performing acts intended to cause abortion, and in New Jersey, as set forth earlier, the prohibition is against committing the abortion “without lawful justification.”
In an area of the criminal law such as an abortion statute, which is so intimately related to public policy, ethics and morals, the nature of the offense prohibited depends strictly upon the language employed by the Legislature. And the intention conveyed and intended to be conveyed by the language must be determined in the ambiance of the time of its use, here 1849. At that time the only defense acceptable to the common law was that the abortion was performed to save the life of the mother. To me, therefore, it is inescapable that when the Legislature incorporated the words “without lawful justification” in its description of the crime, the justification intended was the only one then recognized, i. e., to save the life of the mother. See Perkins, Criminal Law, supra, pp. 106—107. Moreover, the exception in its precise terms remained unchanged through the 1872 supplement and the 1898 and 1952 revisions of the Crimes Act. Also, it should be recalled that in State v. Brandenburg, supra, which was decided in 1948, the Supreme Court declined to hold or to give any indication that an abortion performed not to save the life of the mother, but for some reason pertaining to her health, would be within the statutory excuse. And, although not of overwhelming import, it is of some significance that after Brandenburg the Legislature did not in the ensuing years, particularly in the 1952 revision, enlarge the longstanding meaning of “without lawful justification.”
It is a cardinal principle of statutory construction that the enactment under consideration must be viewed and inter*39preted in the light of the contemporary scene at the time the Legislature acted. No one, even the most sincere advocate of enlargement of the perimeter of justifiable cause for abortion, would suggest that the 1849, 1872 or 1952 Legislatures had in mind sanctioning eugenic abortions. The tenet referred to finds generally accepted expression in 50 Am. Jur. Statutes, § 236 (1944, Supp. 1966) to the effect that there is a tendency to construe the language of a statute in the light in which it may appear to a particular judge when his construction is to be given. But
“* * * such an approach to the question is erroneous. Since, in determining the terms of a statute, the aim is to discover the connotation which the legislature attached to the words, phrases, and clauses employed, the words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed.”
This statement accords with the long-standing sentiment of the New Jersey courts. For example, the former Court of Errors and Appeals in Crater v. County of Somerset, 123 N. J. L. 407, 413 (1939), said:
“It suffices to add that we are under a duty to refer to the history of the times ‘to ascertain the reason for, and the meaning of the provisions of a statute, and to the general state of opinion, public, judicial and legislative, at the time of enactment. And the unmistakable evidence of such contemporaneous circumstances of the intention of the legislature should govern the construction of a statute whose terms are left doubtful by its language, and whose object is the correction of an abuse.’ ”
See also, Magierowski v. Buckley, 39 N. J. Super. 534, 553-554 (App. Div. 1956); and especially Carlo v. Okonite-Callender Cable Co., 3 N. J. 253, 265 (1949), where this Court said:
“It is well established * * * that statutes are to be construed with reference to the common law and that a statute which is claimed to *40impose a duty or establish a right [or a justification] which was not recognized by the common law will be strictly interpreted to avoid such asserted change. To effectuate any change in the common law the legislative intent to do so must be clearly and plainly expressed.” (Bracketed words added)
The sum of all the above is that in my judgment the “without lawful justification” exception applies only when the death of the mother can be reasonably anticipated to result from natural causes unless the child is destroyed. Additionally it means that I do not believe judges have a roving commission to pour into an exception in a penal statute volatile content which is plainly at odds with the original legislative intention, because of personal beliefs that eugenic considerations ought to provide justifiable cause for abortion. Our duty in this highly charged public policy area is to say what the law is and not what we think it ought to be. What it ought to be is a matter for the legislative branch of the government, and we must assume that branch will be conscientiously responsive to the requirements of public health and welfare, and the social and economic exigencies of the times. If it is not as responsive as the people believe contemporary life demands, the remedy rests with them and not with the courts.
No one claims an abortion was necessary to save Mrs. Gleitman’s life. In fact the uncontradicted testimony is to the contrary. Thus, destruction of the fetus because of the previous rubella would have been a crime, as Dr. Cosgrove conceived it to be. Furthermore, it would have been a crime in all of our sister states where preservation of the life of the mother is the only warrant for an induced miscarriage. And even if Dr. Cosgrove, believing in good faith that such an interruption of pregnancy was lawful, had performed the operation or arranged for some other New Jersey doctor to do so, he would have been guilty of the criminal offense. Cf. Adams v. State, 200 Md. 133, 88 A. 2d 556 (Ct. App. 1952); State v. Ellrich, 10 N. J. 146 (1952).
*41II
In seeking some support for the argument that the 1849 Legislature intended “lawful justification” for an abortion to include preservation of the health of the mother as well as her life, reference is made to State v. Murphy, 27 N. J. L. 112, 114-115, where in 1858, nine years after adoption of the statute, the Supreme Court said:
“* * * The design of the statute was not to prevent the procuring of abortions, so much as to guard the health and life of the mother against the consequences of such attempts.”
If the court meant to suggest that the only purpose of the 1849 act was to protect the life and health of the mother, I disagree. There is nothing in the legislative language to support that idea. It seems to me there were two objectives, of at least equal importance. One was to provide greater protection for the child in útero than was given under the common law. To accomplish this, the safeguard against abortion was moved backward from the time when the child became quick, to the moment of conception. Important sequelae have flowed directly or indirectly from this change, the most recent of which may be found in the Smith v. Brennan view of this Court that the unborn child exists as a legal entity from the moment of conception. The second objective was to furnish additional protection for the life and health of the mother by establishing the criminal liability for the abortionist as of the beginning of the pregnancy. This broader view of the aim of the 1849 law seems to have been the opinion of this Court in State v. Siciliano, 21 N. J. 249, 258 (1956), and In re Vince, 2 N. J. 443 (1949).
Whatever the merit of the statement in State v. Murphy, it supplies no basis for plaintiffs’ claim that “lawful justification” for an abortion was intended by the 1849 act to include preservation of the health of the mother as well as to save her life. It is perfectly clear that the Murphy court in referring to the purpose of the statute, in making abortion a *42crime if committed at any time during the period of gestation, as being to protect the life and health of the mother, was talking about safeguarding the mother from the possible dangerous consequences of an abortion. It was not intimating a view that the statute was intended to protect her from the consequences of her pregnancy beyond the safeguard provided by the common law, i. e., if her life came into danger from the pregnancy she could be aborted without criminal liability for the abortionist. There is no inconsistency between these ideas or purposes. The statute recognized the dangers to life and health associated with abortion attempts, and in the public interest made such attempts, successful or otherwise, criminal. But, it accepted also the sensible common law attitude that occasionally, when a condition arising out of the pregnancy puts the mother’s life in danger, the individual interest in safeguarding life must be regarded as paramount and the public policy against abortion subordinate. In this event the bar against abortion vanishes.
At times the line of demarcation between danger to life and danger to health from the pregnancy may be a shadowy one. In such case the honest expertise of the medical profession must be relied upon, and where the credibility of the operating physician is in issue, the decision as to whether he reasonably believed the woman’s life was in danger ordinarily will be left to the jury. In this connection the Iowa Supreme Court said, “It [is] uot essential that the peril to life should be imminent. It [is] enough that it be potentially present, even though its full development might be delayed to a greater or less extent. Nor [is] it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief.” State v. Dunklebarger, 206 Iowa 971, 221 N. W. 592, 596 (1928). Compare Rex v. Bourne, supra, which should not be regarded as a very worthwhile precedent. Both court and physician subverted the phrase “solely for the protection of the life of the woman” to serve the sympathetic expediency of the case. Quay, “Justifiable Abortion—Medical and Legal *43Foundations,” 49 Geo. L. J. 395 (1961); and cf. State v. Gunther, 169 S. W. 2d 404 (Mo. Sup. Ct. 1943); State v. Rudman, 126 Me. 177, 136 A. 817 (Sup. Jud. Ct. 1927); Hatchard v. State, 79 Wis. 357, 48 N. W. 380 (Sup. Ct. 1891); Commonwealth v. Wheeler, 315 Mass. 394, 53 N. E. 2d 4 (Slip. Jud. Ct. 1944).
Suppose we assume for purposes of the present case that “lawful justification” for destroying the child includes danger to the mother’s health from the pregnancy—is plaintiffs’ alleged cause of action in any better position? The uncontradicted medical proof is that Mrs. Gleitman enjoyed good health through the full period of her pregnancy and the delivery of the child. Doctors Cosgrove and Dolan testified that she had a normal and uneventful period of gestation and delivery. Neither she nor any doctor testified to the existence of any adverse health condition which would justify the therapy of an abortion. Consequently, even if serious danger to the mother’s health from the pregnancy itself or from the effect of the pregnancy prior to a full term delivery or some other physical or mental disability were to be regarded as within the statutory justification, the thesis would not be applicable here. And no ease so holding has been furnished to us from any one of the few of our sister states whose statutes accept serious health problems of the mother as a basis for abortion. Even in Massachusetts, where judicial construction has excluded from the “unlawful” category an abortion necessary to save a woman “from great peril to her life or health” (Commonwealth v. Brunelle, 341 Mass. 675, 171 N. E. 2d 850 (1961)), no decision indicates that the circumstances present here would justify the operation.5
*44During the trial and on this appeal plaintiffs refer to the operation, which they say Mrs. Gleitman was entitled to have, as a “therapeutic” abortion. Obviously that is a misnomer. A therapeutic abortion is an induced interruption of a pregnancy, the continuance of which will jeopardize the life or health of the mother. Schmidt’s Attorney’s Dictionary of Medicine (Matthew Bender & Co., Inc., 1965) 1966 Supplement p. 159; Maloy, Medical Dictionary for Lawyers (2d ed. 1951. Callaghan & Co.) p. 5; Application of Grand Jury of County of Kings, 286 App. Div. 270, 143 N. Y. S. 2d 501 (App. Div. 1955).
A termination of pregnancy of the type involved in this case is described properly in the Chief Justice’s dissent as a eugenic abortion. Eugenics is the science which addresses itself to improving the stock, whether human or animal; to means and methods of improving the physical and mental qualities of future generations by control of mating and reproduction. Schmidt’s, supra, p. 284. In the context of a case like the present one, a eugenic abortion would be one based on the probability or possibility that the fetus may be born in a mentally or physically abnormal condition. No American statute authorizes such an abortion. George, Current Abortion Laws: Proposals and Movements for Reform, supra, p. 394. Thus- it is criminal not only in New Jersey but in all of pur sister states as well. Certain it is that no judicial decision has been found in this country which accepted a eugenic abortion for rubella as a defense to a criminal indictment.
In addition to the reasons already expressed for my belief that a eugenic abortion in cases of rubella is not founded in justifiable cause within the contemplation of our statute, some further explanation of the basis for my conviction that resolution of the issue should be left to the Legislature seems called for.
The effect of rubella contracted in the first trimester of a woman’s pregnancy as the cause of mental or physical abnormality in the child is spoken of as if it were horrendous in *45degree and virtually certain in all cases. But this is not so. According to varying statements in the record, the incidence of defective children ranges from 10% to 50%, in early pregnancy rubella cases. Referring to a 1963 article entitled "Infectious Diseases During Pregnancy” which was produced while he was on the witness stand, Dr. Cosgrove said he agreed with the statement therein that most authorities “report anomalies in only ten to twenty per cent of infants whose mothers are infected during the first trimester.” It seems to be undisputed generally in the medical profession that presently there is no way of telling in advance of delivery whether such a child will be defective or the extent of any defect. In any given case there appears to be no certainty, only a variable statistic. Also, in “Humane Abortion Laws and the Health Heeds of Society” by Dr. Kenneth J. Ryan, Professor of Obstetrics and Gynecology at the School of Medicine of Western Reserve University, 17 W. Res. L. Rev. 424, 428-429 (1965), it is noted that “In a careful prospective study which followed the 227 infants of mothers who contracted rubella during pregnancy, the incidence of mental retardation was no different than in the general population; ninety-two per cent of the children were attending regular schools eight to eleven years after birth. Many of the defects of these children were correctible.” But the proponents of eugenic abortions in first trimester rubella cases advocate destruction of every fetus to serve the variable statistics.
Moreover, congenital defects from rubella run a broad spectrum. It is certain the children are not all as disabled as the unfortunate Gleitman boy. Eor example, blindness may be partial or total; it may be unilateral or bilateral. In many cases the degree of impairment may be different between the two eyes, and in some, one eye may be perfectly normal while the other is impaired. See, Roy & Deutsch, “The Congenital Rubella Syndrome—-Ocular Pathogenesis and Related Embryology,” 62 Am. J. Ophthal. 236, 238 (1966). The same imbalance may occur in hearing impairment. “Rubella Virus and the Human Foetus,” 1965 Brit. Med. J. 1014, 1015; see *46also, Sheridan, Final Report of a Prospective Study of Children Whose Mothers had Rubella in Early Pregnancy,” 1964 Brit. Med. J. 536, 537-538. It might well be noted here also that in Dr. Ryan’s article, supra, at page 429, he points out that “In this country’s rubella epidemic of 1964-965, many women were aborted with and without good evidence of risk, since other viral infections often masquerade as clinical rubella.” Yet the eugenic abortion advocates would destroy every fetus when associated with an early pregnancy rubella. But the proposed Model Penal Code suggests only that an abortion be authorized when there is substantial risk that “continuance of the pregnancy” would mean that “the child would be born with grave physical or mental defect.” Section 230.3 (2). (Emphasis added.)
There are doctors who feel that abortion in rubella eases represents a negative approach. They hold the view that their profession is devoted to the preservation of life, not to its destruction; that the major efforts in this field should be based on research and pointed toward prevention, not destruction. In the article in The New York Times, Conniff, “The World of the Unborn,” referred to by Justice Proctor, it is said that “one line of research—already far advanced toward success—seeks a vaccine for the mother against German measles (or rubella),” p. 96.
There are many conditions and diseases of the mother which result in defective children. At one time tuberculosis was called “the most significant indication for therapeutic abortion in point of frequency” but abortion for that reason is practically nonexistent todaj’'. See, Dr. Kenneth R. Niwander, Associate Professor of Obstetrics and Gynecology at the State University of New York, “Medical Abortion Practices in the United States,” 17 W. Res. L. Rev. 403, 416 (1965). The doctor noted “of the abortions in a recent Buffalo study, tuberculosis accounted for 33 to 50 per cent of the abortions in the 1940’s, about 10 per cent in the 1950’s, and none during the years 1958 to 1965.” The advent of drug therapy produced this change. Id., at p. 409. Cardiovascular *47disease in pregnant women was treated frequently in the past as a proper basis for therapeutic abortion. But “with improved prenatal care (including the significant advances recently provided by cardiac surgery), the number of women with cardiovascular disease whose life is actually in dange'r during pregnancy has decreased substantially.” Dr. Diswander, supra, at page 407. In the Buffalo study referred to above, “cardiovascular indications were present in about 15 per cent of the pregnancy interruptions in the 1940’s; the incidence had decreased to approximately 5 per cent in the 1950’s and became practically non-existent in the 1960’s.” Id., at page 416. I have no doubt that other instances of this land can be found. According to Dr. Diswander, “Taussig, in his volume published in 1936, lists a myriad of medical indications for abortion. Since the publication of [his] book, there has been a gradual transition in medical thinking, and some of the diseases formerly used as indications for abortion no longer obtain.” Id., at page 416, citing Taussig, Abortion, Spontaneous and Induced: Medical and Social Aspects (1936). See also the references in The World of the Unborn, supra, pp. 96-100, to the success of fetologists in treating the fetus in útero and guarding against some birth defects thereby. As the author hopefully puts it:
“People at work on the frontiers of obstetrics forsee, by all these means, not just an end to birth defects, but actual enhancement of intelligence and improvement of the bodily organs by ‘genetic engineering.’ ” Id., at page 100.
In referring to some of the medical aspects of the problem here, I do not pretend to any professional knowledge, certainly not to any expertise. And lacking capacity to evaluate the statements in the various articles mentioned, I do not offer them as gospel. I suspect there are few judges here or elsewhere in the country who are qualified to speak authoritatively on the medical phases of the problem. But the limited judicial knowledge and the lack of assistance given *48us by the actual record submitted are the very reasons why broadening of the scope of legally permissible abortions should be left in the hands of those who promulgated the statute, i. the Legislature. I am as certain as any human can be that the legislators never intended to authorize abortion simply because of rubella occurring in the first trimester of a woman’s pregnancy. If abortion of that type is to be regarded as supported by justifiable cause, those public policymakers who created the criminal offense should be regarded by the courts as having the primary right to say so. A Legislature is much better equipped to reach an informed judgment on such a controversial and emotional matter. It can study the problem by means of a committee of its own, which would seek information and advice from experts in obstetrics, gynecology and fetology. Predilections of judges in such a sensitive policy-making area of the criminal law are no substitute for educated judgment.
Under all the circumstances of this case, in my judgment it would have been a crime for Doctor Cosgrove or Dolan ox any other New Jersey physician to abort the normal pregnancy of Mrs. Gleitman because she had had rubella in the first trimester of her pregnancy. Consequently, the defendants did not violate any legal duty which would make them liable in damages to her or her husband or their child, even if they failed to advise her of the possibility that her child might be defective, and that there were places where she could have an abortion performed, if she elected to do so.
Furthermore, as I suggested above, no such abortion has ever been sanctioned as lawful in any other state. The contrary appears to be the case, and even more strongly so than in New Jersey, because in all but a minimal number of states, by express statutory provision, preservation of the life of the mother is made the only excuse for abortion. But, even if there were some state or foreign country where an abortion for rubella were lawful, in the face of the present strong public policy of New Jersey against such an abortion, no cause of action for damages should be recognized in New Jersey if a *49local physician did not advise his patient that some such forum existed.
Accordingly for the reasons expressed by Justice Proctor, as well as the additional grounds set forth herein, I agree that the order of the trial court dismissing the plaintiffs’ claims should be affirmed.
14-20 weeks. See Annotation, § 207.11, Tentative Draft, Model Penal Code (1959) 148.
The unwillingness of the New Jersey court to change the common law abortion rule also reflected the attitude of other jurisdictions. For example, in Mitchell v. Commonwealth, 78 Ky. 204, 39 Am. Rep. 227 (Ct. App. 1879), where the issue was the same as in Cooper, the Supreme Court said:
“In the interest of good morals and for the preservation of society, the law should punish abortions and miscarriages, willfully produced, at any time during the period of gestation. That the child shall he considered in existence from the moment of conception for the protection of its rights of property, and yet not in existence until four or five months after the inception of its being, to the extent that it is a crime to destroy it, presents an anomaly in the law that ought to be provided against by the law-making department of the government. The limit of our duty is to determine what the law is, and not to enact or declare it as it should he.” (Emphasis added)
Justice Proctor’s opinion for the Court pointed out that medical authorities, which he cited, recognize that before birth an infant is a distinct entity; that the criminal law regards him as such, as well as does the law of property and decedents’ estates for purposes beneficial to his interests. 31 N. J., at pp. 363-367. It was noted 30 years ago that the increase in knowledge of embryology had revealed that the child has separate existence from the moment of conception. See Note, “A Functional Study of Existing Abortion Laws,’’ 35 Colum. L. Rev. 87, fn. 2, p. 88 (1935).
See, Clark & Marshall on Crimes (6th ed. 1958) § 11.06 pp. 685-689; Perkins, Criminal Law (1957) 101, 106; 3 Burdick, Law of Crimes (1946) § 871, p. 287; Miller, Criminal Law (1934) 443-444; Clark’s Criminal Law (3d ed. 1915) 430—431; Annotation, Tentative Draft, Model Penal Code, supra, p. 152; Note, “A Functional Study of Existing Abortion Laws,” 35 Colum. L. Rev., supra, at p. 95, fn. 53; see the much cited case of Rex v. Bourne [1938] 3 All. E. R. 615 (K. B.) where the trial court charging the jury said that if the doctor did not perform the abortion “in good faith for the purpose only of preserving the life of the girl,” the verdict should be guilty. He said also that the words “in good faith for the purpose only of preserving the life of” the woman “express what, in my view, has always been the law with regard to the procuring of an abortion, and, although not expressed in sect. 58 of the Act of 1861, they are implied by the word ‘unlawful’ in that section.”
The section of the proposed Model Penal Code abortion statute which seeks to establish certain considerations of health as an excuse for abortion, if adopted, would not assist plaintiffs here. It seeks to justify abortion if continuance of the pregnancy would, in the opinion of the physicians, entail “a substantial risk of gravely impairing the mother’s physical or mental health.” Proposed Official Draft, Model Penal Code, section 230.3, subsection (2) (1962). No such risk is supportable under the testimony in this case.