(dissenting in part). The legality of a eugenic abortion in New Jersey, which now overshadows the question whether plaintiffs should be compensated, entered this case rather tangentially. If such an abortion were criminal and if also such an abortion performed on a New Jersey domiciliary in a jurisdiction which deems the abortion to be lawful would nonetheless offend the policy of our State, then it would be arguable that our courts should not award damages against a physician who allegedly deprived a woman of an option thus to violate our statute or its policy by an act done here or elsewhere. The trial court took that view of the matter in directing judgment against the mother and father,
I
The majority opinion finds it unnecessary to decide whether a eugenic abortion runs afoul of our criminal law. Although *56usually it is good judicial craftsmanship in such circumstances to abstain, especially if an issue is sticky, here the very suggestion that a question remains as to whether a eugenic abortion is criminal will be quite as forbidding as a flat holding that it is.
We know from material available to us that in cases of rubella during the first trimester of pregnancy abortions have been performed in New Jersey by reputable doctors in reputable hospitals, all of whom have believed such abortions to be lawful. In fact every doctor who testified in this case, including the defendants themselves, said that good medical practice requires informing a pregnant woman of the danger of deformity or defect if she has had German measles during the first trimester of her pregnancy, and, there being no other reason suggested for that advice, I assume good medical practice requires it to the end that she may seek an abortion, here or somewhere. When the highest court of the State even intimates the practice may be criminal, I would doubt that a reputable doctor or reputable institution would take the risk. Rather the question will likely be presented by some back-alley abortionist with all the diversion from the merits that a character of that kind can induce. Meanwhile, we can be sure, the pregnant woman who until now has had the services of the highest run of medical men and the safety of a hospital will deliver herself to dirty hands, if she can afford it, for a woman unwilling to risk the tragedy of rubella is not apt to accept anyone’s judgment that she has no more say than a broodmare.
I have difficulty with the constitutionality of the abortion statute, at least as it would be applied here. The statute, N. J. S. 2A:87-1, makes guilty of a high misdemeanor any person who “without lawful justification” does any of the forbidden things with the intent to cause a miscarriage. The penalty is severe, the maximum imprisonment being seven years, N. J. S. 2A:85-6, unless “the woman or child shall die,” in which event the imprisonment may be for 15 years, N. J. S. 2A:87-1. The statute, however, does not define *57“lawful justification”; it does not say what fact—medical, sociological or economic—shall be “lawful justification.”
We are not dealing with the delegation of legislative power to administrative agencies, as to which in some situations the Legislature may leave a problem to an agency for detailed solution. See Shelton College v. State Board of Education, 48 N. J. 501 (1967). Nor are we dealing with an offense which defies perfect definition so that there inevitably remain marginal areas in which one who enters is nonetheless conscious of a risk. See Boyce Motor Lines v. United States, 342 U. S. 337, 340, 72 S. Ct. 329, 96 L. Ed. 367, 371 (1952). As to the subject before us, it is a simple matter' to tick off the specific situations and to state the ones in which “lawful justification” shall be found. Thus we readily know the question is whether “lawful justification” should exist (1) if there is a substantial risk to the life of the mother; or (2) if there is a substantial risk to the physical or mental health of the mother; or (3) if there is a like risk that the child will be born with grave physical or mental defect; or (4) if the pregnancy resulted from incest or rape (common law or statutory); or (5) if the mother is unmarried; or (6) if there will be economic or soeiologic hardship; or (^) if the woman consents, for any or no reason. The Model Penal Code, § 230.3 (Proposed Official Draft, May 4, 1962), states specifically what constitutes justification, and lists essentially the first four factual patterns I have just set forth. Thus there is no reason why a legislature could not itself say what shall constitute justification.
There are two constitutional facets to legislative vagueness or ambiguity. One concerns the individual, who is entitled by due process to a reasonably explicit warning as to what he may not do. The other concerns the division of responsibility between the legislative and judicial branches of government, for although, I have no doubt, the judiciary inevitably has a creative role in deciding civil controversies, I do not believe it has a like responsibility with respect to criminal liability. As to that subject, it is the Legislature which *58should decide what conduct shall be punishable, and although the judiciary should labor to find the legislative intent and to sustain it within constitutional bounds, it is something else to permit the Legislature to pass the policy decision to the judiciary. The point would be plain if the statute recited in so many words that the legislators were unable to agree upon what ought to be justification for a consensual abortion, and being thus unable to agree, the policy problem is assigned to the Supreme Court of the State with the hope that a majority of the Court will work it out. A delegation, with such frankness, would, I am sure, be refused by the Court, and yet the issue is the same whenever a court is unable to discover what the Legislature intended and must therefore read into the statute what the judge thinks the legislators ought to have agreed upon if they had his wisdom and courage.
In this connection, it is helpful to refer to two recent opinions of our Court. State v. Hudson County News Co., 35 N. J. 284 (1961), involved N. J. S. 2A:115-2 which makes it a crime to utter, expose or sell obscene or indecent books, etc., "without just cause.” The action was for a declaratory judgment. The phrase "without just cause” was attacked as too vague in terms of the individual’s right to be forewarned. The subject being obscenity, as to which all efforts to be precise have failed, the Court correctly recognized the legislative problem and accorded the individual a needed measure of protection by restraining the terms of the statute, first, by requiring a "scienter” consisting of the vendor’s actual knowledge of the content of the book (at p. 295), and, second, by concluding that "just cause” exists "where the nature of the possession and distribution is not related to the appeal to prurient interest” (at p. 297), thereby finding concreteness for the phrase "without just cause” in the very subject of the legislative ban, obscenity.
More troublesome, in my view, is N. J. S. 2A:170-76 which makes it a disorderly persons offense to expose for sale or sell contraceptives “without just cause.” This statute was sustained in Sanitary Vendors, Inc. v. Byrne, 40 N. J. 157 *59(1963). Again, as in the case jnst discussed, the attack was in terms of due process, that is, the individual’s right to forewarning, and not in the further terms of separation of the powers of government. There this Court found the legislative intent was to deal with the mode of vending, rather than to prevent a sale, and holding that the Legislature meant no more than to ban a mode of vending that would aid parties to illicit sexual relations, the Court concluded that a sale by vending machine was bad whereas a sale across the druggist’s counter was not. The Cortrt thought the situation was “nonmarginal” and noted that a judicial statement of the statute’s meaning in a declaratory judgment proceeding served to give the individual ample warning for the future. But in Sanitary Vendors there seems not to have been raised the question whether the statute was just an incomplete act of legislation whereby the Legislature passed to the judiciary for gestation the touchy subject of contraception.
Contraception and abortion have this in common, that whereas in most areas of criminal prohibition the fact of evil is evident to most people, here there is evil or none at all depending wholly upon a spiritual supposition, for while men agree it is wrong to take life, yet, knowing nothing about the void before or after their earthly presence, they cannot agree upon the point at which a living thing should be thought to be human in its being. We know there is “life” in the ovum and sperm before conception, but as to the morality of contraception, every argument starts from and returns to an ethical or religious assumption. Hence he who opposes and he who supports contraception is equally sure he serves the dignity of man. And so as to abortion, men cannot agree upon the stage at which an embryo or fetus has a claim to acquire life in human form strong enough to override a woman’s right to her own bodily integrity. It is not surprising, therefore, that as to both contraception and abortion, the legislators were able to agree only upon such vagueness as “without just cause” and “without lawful justification.”
*60I have not overlooked the possibility that the Legislature meant by “lawful justification” to refer to the justification available with respect to the common-law crime and thus spoke with specificity. I think that thesis cannot be accepted.
The common-law crime had a different object in view. The common-law offense was designed to protect the life of the fetus, and upon the postulate that life began when the fetus stirred in the mother’s womb, it was an abortion thereafter which alone was criminal. State v. Gooper, 22 N. J. L. 52 (Sup. Ct. 1849). The statute, which was enacted in 1849 (L. 1849, p. 266), the year of the Gooper decision, had a different, or at least still another, objective; it was to protect the pregnant woman in her life and in her health, and to that end the statute made the abortion a crime on the part of third persons, whether the child was quick or not. So in State v. Murphy, 27 N. J. L. 112, 114-115 (Sup. Ct. 1858), the 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.”
and that:
“* * * n0 act 0f ¡s made criminal by the statute. Her guilt or innocence remains as at common law. Her offense at the common law is against the life of the child. The offence of third persons, under the statute, is mainly against her life and health. The statute regards her as the victim of crime, not as the criminal; as the object of protection, rather than of punishment.”
This view has been repeated in a series of cases since then.1
*61The statutory objective being different, we ought not to assume that the Legislature meant by “lawful justification” to refer to the justification the common law devised with respect to a common-law offense created to serve another value. If the common law, being concerned solely with the life of the fetus, recognized only the preservation of the life of the mother as justification for the destruction of a fetus that is quick, we could not safely conclude that the statute intended, at least before the fetus is quick (and that is the situation involved in this case), that the sole justification for an abortion would be the preservation of the life of the mother. If the preservation of the health of the mother was within the object of the statute, the statute would be turned against her if she could not have terminated a pregnancy which is a threat to her health equal to or greater than the health risk in the abortion. The question whether the woman’s health may justify an abortion under the statute was expressly left open in State v. Brandenburg, 137 N. J. L. 124, 127 (Sup. Ct. 1948). I note that when the Massachusetts statute read as our statute reads, protection of her health was found to be lawful justification. Commonwealth v. Wood, 77 Mass. 85 (Sup. Jud. Ct. 1858); see Commonwealth v. Brunelle, 341 Mass. 675, 171 N. E. 2d 850 (Sup. Jud. Ct. 1961).
Further, it is so easy to state what shall be justification that it is unlikely the legislators, if they were in agreement, would have expressed it by such indirection, especially since the common law itself was rather obscure upon the topic.2 *62The vast majority of the State legislatures defined justification in explicit terms.3
In any event, if “lawful justification” does refer to the common law, the question would remain whether we could find in the common law the answer to the question whether a eugenic abortion is justifiable. The reason is that the common-law judge never dealt with the question. Then (and as well in 1849 when the statute was adopted) there apparently was no medical basis to anticipate a defective offspring. The ravages of rubella were first established in 1941, and the hazards of X-ray and certain drugs are also recent discoveries. Accordingly we cannot know how the common-law judge would have dealt with such a situation, even if the fetus were quick.
For these reasons I have grave doubt that the statute contains a full legislative decision. The Comment in the Model Penal Code (Tentative Draft No. 9, May 8, 1959) suggests that a court might find it permissible to abort a probably defective offspring under the few statutes which prohibit “unlawful” abortions (pp. 153-154). Perhaps so, and if it is, it would be equally true of a statute which speaks of ‘lawful justification.” At any rate, I could not conclude the statute expresses a discernible legislative intent to make such an abortion criminal. In an area in which so many disagree with honor, in which, even in States which define justification in terms of the life of the mother, there has been widespread belief that a eugenic abortion in such circumstances is lawful,4 I am not willing to find that it is not. I believe preg*63nant women would not accept that decision unless their ethical or religious conviction accorded with it. For the others, if they could afford the illegal abortion, the result would be all the risks of that business. I would leave it to the Legislature to condemn such an abortion if it is so minded.
II
With respect to the claim advanced on behalf of the infant, I agree with the majority that it cannot be maintained. Ultimately, the infant’s complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so.
We must remember that the choice is not between being born with health or being born without it; it is not claimed the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all. Implicit, beyond this claim against a physician for faulty advice, is the proposition that a pregnant woman who, duly informed, does not seek an abortion, and all who urge her to see the pregnancy through, are guilty of wrongful injury to the fetus, and indeed that every day in which the infant is sustained after birth is a day of wrong. To recognize a right not to be born is to enter an area in which no one could find his way.
As to the mother and father, the situation is different. I think the option to abort is hers, and that a wrong is done her (and derivatively her spouse) if she is not told of the risk or is assured there is none. Defendants say they did advise her, and of course we do not pass upon the factual dispute between them and her. The question is whether she was entitled to have the jury find where the truth lies, and hence the question before us is only whether she would be ■entitled to recover if she satisfied a jury (1) that, as she claims, she was told there was no risk of a defective child and (2) that she would have elected an abortion if she had been correctly informed.
*64Troublesome, however, is the measure of damages. Two major elements come to mind at once—the cost of medical cure and the cost of maintenance of the child who is so deformed or defective as to require special care.
In a case of tortious injury the right to cure and care belongs to the injured'party, and basically that is equally true if the injured person is a child even though a parent who pays for cure or care pursuant to the duty the law imposes upon a parent may sue in his own name to recover that loss. In the usual case, the parent’s claim, at least in its inception, is derivative and dependent upon the accrual of a right in the child. See Orr v. Orr, 36 N. J. 236, 239 (1961). In a sense the parent is subrogated pro tanto to the child’s cause of action. If here the parent’s claim is viewed in these conventional terms, there can be no recovery for the expense of cure or care because defendants did not injure the child.
But there is an injury to the mother, and the question is whether a claim for the infant’s cure and care can be said to flow from that injury. Even though there is an obvious connection between the loss of the option to abort and those costs, it seems to me that the parent’s claim for the infant’s cure and care must ultimately presuppose it would have been to the child’s own interest not to have been born. The claim for cure and care is the child’s, whether it is asserted on the child’s behalf against a wrongdoer or against the mother or father or anyone else who in law must furnish it, and when a parent seeks to shift that burden to a tortfeasor, it must be, I think, upon the premise that the tortfeasor did a wrong to the child. If the child’s estate bore the cost of cure and care as in some cases it might, the child could not recover that cost from the physician for the reason already given. It would be anomalous to say that a physician, although not liable to an infant who incurred that dollar loss, must pay for it when someone else, whether father, mother, other relative, or the State itself, incurs the expense.
But in other respects the mother is hurt in her own right by the denial to her of her option to accept or reject a *65parental relationship with the child. The father, too, although his right is wholly dependent upon the mother’s decision, is so directly concerned in her decision that he may fairly be regarded as a victim of a wrong done to her. No doubt it would be difficult to assess the amount of the injury, but the law should try to compensate for it, if only to reinforce the duty of due care. I would permit the trier of the facts to put a price on the loss of that option.
I would stress that the valuation could not be made by contrasting the defective child with a normal one, because that was not the option. We cannot go on the hypothesis that the mother would have had the abortion and thereafter conceived and delivered a healthy child. We are dealing with human beings and not with fungibles, and the damages are those suffered with respect to this child. The pain of the parents must be measured against the joy they find in him as he is.
It would be difficult to strike a net balance between the intangible pluses and minuses in a parent-child relationship, and it would be the rare case in which a parent would testify that it is his or her present wish that the child had not been born. No one who has witnessed the love of a parent for an imbecile could expect so crass a computation from the parent’s lips. But I believe that even without such testimony an outsider could evaluate the injury, and I would recognize a right in the parents to seek that evaluation, subject to careful judicial supervision, in order to support the woman’s right to choose whether to risk this misfortune.
For affirmance—Justices Francis, Proctor, Hall and Haneman—4.
For reversal in part—Chief Justice Weintratjb—1.
For reversal—Justices Jacobs and Schettino—2.
State v. Hyer, 39 N. J. L. 598, 600 (Sup. Ct. 1877) ; State v. Gedicke, 43 N. J. L. 86, 89 (Sup. Ct. 1881) ; State v. Loomis, 89 N. J. L. 8, 9 (Sup. Ct. 1916), affirmed 90 N. J. L. 216 (E. & A. 1917) ; State v. Mandeville, 89 N. J. L. 228, 231 (E. & A. 1916) ; In re Vince, 2 N. J. 443, 450 (1949) ; State v. Siciliano, 21 N. J. 249, 258 (1956). The statute of 1849 provided for greater punishment if the woman died. By L. 1872, c. 337, p. 45, the act was amended to provide for greater punishment if either the woman or the *61“child” should die. Siciliano lists “the protection of the unborn child” as an objective along with the protection of “the life and health of the mother.” Whether “child” includes every fetus that is quick is not immediately clear, but if it does, it is still the object of the statute to protect the mother’s health.
It is generally assumed in expressions since the American Revolution that the common law deemed the preservation of the life of the mother to be justification. See 3 Burdick, Law of Crimes (1946), § 871, p. 287. I accept that proposition for present purposes although I have not come upon either a decision or a tréqtise written prior to the American Revolution which states what constitutes justification.
The abortion statutes in most States specify the life of the mother, with a few adding a threat to her health. See the exhaustive comment in Tentative Draft No. 9 of the Model Penal Code (May 8, 1959), p. 146.
The Comment to the Model Penal Code (Tentative Draft No. 9, May 8, 1959), speaking of such abortions, states that “Despite the uncertain status of eugenic as distinguished from therapeutic abortion, such operations are regularly performed by responsible physicians in hospitals throughout the country.” (at p. 154) See also Summer and Leavy, “Therapeutic Abortion Law Confusion,” 195 Journal of American Medical Ass’n 140 (1966).