(dissenting). When Mrs. Gleitman told her obstetricians that she had German measles (rubella), they were placed under a clear duty to tell her of its high incidence of abnormal birth. That duty was not only a moral one but a legal one as well. Cf. Salgo v. Leland Stanford Jr. University, 154 Cal. App. 2d 560, 578, 317 P. 2d 170, 181 (1957); Mitchell v. Robinson, 334 S. W. 2d 11, 18 (Mo. Sup. Ct. 1960); Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, 1101, rehearing denied 187 Kan. 186, 354 P. 2d 670 (1960); Dowling v. Mutual Life Insurance Co. of New York, 168 So. 2d 107, 116 (La. Ct. App. 1964), certiorari denied 247 La. 248, 170 So. 2d 508 (1965); DiRosse v. Wein, 24 A. D. 2d 510, 261 N. Y. S. 2d 623, 624, leave to appeal denied 16 N. Y. 2d 487, 264 N. Y. S. 2d 1030, 212 N. E. 2d 447 (1965); Annot., 79 A. L. R. 2d 1028 (1961). If the duty had been discharged, Mrs. Gleitman could have been safely and lawfully aborted and have been free to conceive again and give birth to a normal child. Instead she was told, according to her testimony which the majority assumes for present purposes to be true, that her child would not be at all affected. In reliance on that she permitted the pregnancy to proceed and gave birth to a child who is almost blind, is deaf and mute and is probably mentally retarded. While the law cannot remove the heartache or undo the harm, it can afford some reasonable measure of compensation towards alleviating the financial burdens. In declining to do so, it permits a wrong with serious consequential injury to go wholly unredressed. That provides no deterrent to professional irresponsibility and is neither just nor compatible with expanding principles of liability in the field of torts. See Ekalo v. Con*50structive Serv. Corp. of America, 46 N. J. 82, 93 (1965); Falzone v. Busch, 45 N. J. 559 (1965); Smith v. Brennan, 31 N. J. 353 (1960).
While the wrong was done directly to Mrs. Gleitman, in truth and reality it vitally affected her entire immediate family. Her husband’s standing and injury alongside her should be self-evident since he was as intimately concerned with the pregnancy and its consequences as was his wife. See Ekalo v. Constructive Serv. Corp. of America, supra, 46 N. J., at p. 93. And while logical objection may be advanced to the child’s standing and injury, logic is not the determinative factor and should not be permitted to obscure that he has to bear the frightful weight of his abnormality throughout life, and that such compensation as is received from the defendants or either of them should be dedicated primarily to his care and the lessening of his difficulties. Indeed, if this were suitably provided for in the ultimate judgment, the technical presence or absence of the child as an additional party plaintiff would have little significance.
I find no substantial basis for the majority’s notion that it would be “impossible” for the court or jury to deal properly with the matter of compensatory damages. The plaintiffs’ thesis, which a jury could reasonably accept, is that, were it not for the breach of duty, the pregnancy would have been lawfully terminated and the plaintiffs would have been spared not only the incalculable emotional distress but also the readily measurable medical and maintenance expenses causally related to the abnormality. Surely a judicial system engaged daily in evaluating such matters as pain and suffering, which admittedly have “no known dimensions, mathematical or financial” (Bolla v. Brunner, 26 N. J. 82, 95 (1958)), should be able to evaluate the harm which proximately resulted from the breach of duty. Indeed, even if there were more evaluation complexities than are truly present here, they would not furnish any sound basis for the total denial of recovery. See Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931); Martin v. *51Bengue, Inc., 25 N. J. 359, 373 (1957); Jenkins v. Pennsylvania R. R. Co., 67 N. J. L. 331, 334 (E. & A. 1902). In the Story Parchment Co. ease the Supreme Court expressed the following thoughts which hear emphasis here:
“Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise. Eastman Kodak Co. [of New York] v. Southern Photo Materials Co., 273 U. S. 359, 379, 47 S. Ct. 400, 71 L. Ed. 684, 691. Compare The Seven Brothers (D. C.) 170 F. 126, 128; Pacific [Steam Whaling] etc. v. Alaska Packers Ass’n, 138 Cal. 632, 638, 72 P. 161.” 282 U. S., at p. 563, 51 S. Ct., at p. 250, 75 L. Ed., at p. 548.
The majority rests its rejection of the plaintiffs’ action not only on its expressed difficulties with damages hut also on its views as to the State’s “public policy.” But there is no policy favoring the breach of duty here or its immunization. Dor is there any dispute that the Gleitmans could have terminated the pregnancy lawfully outside Dew Jersey, at least in some foreign country. While the majority does not pass on the issue, I believe that the pregnancy could also have been terminated lawfully within Dew Jersey. It should be borne in mind that Mrs. Gleitman had rubella during the first or second month of her pregnancy; studies have indicated that the danger of grave abnormality is highest when the rubella is contracted that early, with some estimates running as high as 60 per cent. See 287 The Lancet 373 (1964). During the first trimester, which was well before any quickening, the pregnancy could have been humanely terminated by an operation which is well-recognized in medical circles as “painless, simple and- safe.” See Guttmacher, “An Ob*52stetrician-Gynecologist Examines New York’s Abortion Law,” December 5, 1966.
In State v. Cooper, 22 N. J. L. 52 (Sup. Ct. 1849), the termination of pregnancy before any quickening was held not to constitute a criminal offense at common law. During the year of Cooper, a New Jersey statute was enacted declaring abortions performed maliciously or without lawful justification to be criminal without regard to quickening. L. 1849, p. 266. But at that time in history, all abortions were considered medically dangerous, and the design of the statute, according to contemporaneous judicial expressions, “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.” State v. Murphy, 27 N. J. L. 112, 114 (Sup. Ct. 1858).
It is highly significant that, although New Jersey’s abortion statute has been amended from time to time, its scope has always been expressly confined by the Legislature to abortions performed “maliciously or without lawful justification.” See L. 1849, p. 266; L. 1872, p. 45; L. 1881, p. 240; L. 1898, p. 827; R. S. 2:105-1; N. J. S. 2A:87-1. At no time has the New Jersey Legislature departed from its general terminology by specifically defining, as many other state legislatures have, the particular situations which would constitute lawful justification. In State v. Brandenburg, 137 N. J. L. 124, 127 (Sup. Ct. 1948), Chief Justice Case indicated no doubt that preserving the mother’s life would be justification although he declined to express any opinion as to whether preserving ier health would suffice. In Massachusetts, the courts have •assumed that under comparable legislative terminology, abortions are permissible to save the mother’s life “or to prevent ‘serious impairment of her health, mental or physical”. Commonwealth v. Brunelle, 341 Mass. 675, 171 N. E. 2d 850, 852 (1961). And in our own State it is well-known that abortions have been and are being performed in good faith by highly qualified physicians in highly reputable hospitals, -when necessary to preserve the life or health of the mother, *53or to preclude the quickening of the fetus in rubella cases and the like.. See Waugh, J., in Sanitary Vendors, Inc. v. Byrne, 72 N. J. Super. 276, 287 (Law Div. 1962), affirmed 40 N. J. 157 (1963).
After a painstaking study of current medical and legal practice and thought, the reporters of the American Law Institute submitted a proposed penal code permitting termination of pregnancy where the physician believes that continuance would gravely impair the physical or mental health of the mother, or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape or incest. Model Penal Code (Tentative Draft No. 9, May 8, 1959) § 207.11, p. 144. See also Model Penal Code (Proposed Official Draft, May 4, 1962) § 230.3, p. 189. They also suggested that this result might be reached by judicial interpretation of statutes which prohibit unlawful abortion “without defining what is unlawful.” Tentative Draft No. 9, at p. 154.
When the New Jersey Legislature enacted its abortion statute, it was clearly altering and not speaking in terms of the common law under which all terminations of pregnancy before quickening were noncriminal. It could have but did not speak in absolute prohibitory terms. Similarly it could have but deliberately chose not to confine the statutory exception to the preservation of the mother’s life or to any other specific and defined grouping. Instead it used the phrase, “maliciously or without lawful justification” (N. J. S. 2A:87-1), thus necessarily leaving the matter to interpretation by the judiciary; it took much the same course in N. J. S. 2A:170-76, where it prohibited the utterance of abortifacients “without just cause.” While it must have contemplated that the judiciary would endeavor to carry out the over-all legislative purpose, it must also have contemplated that interpretation of its broad and flexible terminology would appropriately be made from time to time in the light of prevailing conditions. See State v. Hudson County News Co., 35 N. J. 284 (1961); Sanitary Vendors, Inc. v. *54Byrne, supra, 40 N. J. 157; 2 Sutherland, Statutory Construction § 5102 (3d ed. 1943); cf. Pirkey Bros. v. Commonwealth, 134 Va. 713, 114 S. E. 764 (1922), where the court, in sustaining an ancient Sunday law prohibiting labor other than “work of necessity or charity,” pointed out that the statutory exception “must be construed with reference to the conditions under which we live.” See N. J. S. 2A:171-1; see also State ex rel. Heck’s, Inc. v. Gates, 149 W. Va. 421, 141 S. E. 2d 369, 378-379 (1965); cf. N. J. S. 2A:171-5.8; State v. Monteleone, 36 N. J. 93 (1961).
In State v. Hudson County News Co., supra, 35 N. J. 284, this Court had occasion to deal with N. J. S. 2A:115-2 which declares the sale of obscene literature to be criminal when made “without just cause”; as here, the Legislature had not defined the scope of the exception and the court proceeded to do so in the light of modern conditions and considerations. Similarly in Sanitary Vendors, Inc. v. Byrne, supra, 40 N. J. 157, this Court gave meaning to the exception in N. J. S. 2A:170-76 which prohibits the sale of contraceptives “without just cause”; it concluded that contraceptives may now generally be sold by physicians and druggists but may not be sold promiscuously through vending machines in public places. 40 N. J., at p. 165. In both cases the judicial efforts were extended towards sustaining the legislative enactments by giving current content to their general phraseology, thus affording fair warning to those who might thereafter be affected and thereby avoiding any due process attacks. In neither case did anyone suggest that the court was precluded by the doctrine of separation of powers from taking that course and that consequently the statute must be stricken in its entirety, a result which courts traditionally strain to avoid. See Grand Union Co. v. Sills, 43 N. J. 390, 408-411 (1964); Ward v. Scott, 11 N. J. 117, 122-128 (1952).
If, as the cited history indicates, the New Jersey Legislature was primarily concerned with the “health and life of the mother” (State v. Murphy, supra, 27 N. J. L., at p. 114), then surely a therapeutic termination of pregnancy to pre*55serve her life or health may be considered as falling within the contemplation of the statutory exception. And when the legislative purpose and general terminology are viewed alongside current medical science and understanding, a good faith eugenic termination “in accordance with accepted medical standards that an abortion is medically indicated,” as the majority opinion phrases it, may also properly be considered as falling within the contemplation of the exception. See 2 Sutherland, supra, § 5102. Should the Legislature differ with any of this, it is of course at liberty to adopt an enactment clearly expressing its wishes and directions. In the meantime, common fairness to the physicians of New Jersey and those entrusted to their care, suggests that the question not be left open and that any doubts be resolved in favor of the individual's freedom of determination and noncriminality. See 3 Sutherland, supra, §§ 5604, 5605.
Justice Sohettino agrees with this dissent and joins me in voting to reverse the dismissal of the complaint and to remand the matter for trial.