Concurring.
I most certainly concur with the opinion of this Court in its decision to overrule Hollis. In that case, a plurality of this Court in 1983 determined that a viable unborn child is not a person under KRS Chapter 507, and that an unborn child must be “born alive” to constitute a person thereunder. Hollis reasoned that an individual who kills a viable unborn child cannot be charged with criminal homicide. Clearly, it was long past due to remove that holding from the jurisprudence of Kentucky.
I write separately in concurrence to state my views regarding the necessity of recognizing the ultimate legal logic and medical fact that necessarily arises from the adoption of a viability standard. “Viability” is a term of art, nonspecific, constantly changing, and medically and factually of some concern. ‘Viability” measures not the humanity of the unborn child, but of the life support capacity of our culture and society.
For almost a half a century, the law with respect to the rights of unborn children has been progressive and enlightened by the clear evidence developed in the sciences of medicine and biology. Except for certain superficial differences, there is no meaningful distinction between the unborn child with functioning but younger organs and another unborn child, a few days or weeks older with functioning slightly more advanced. There is no difference sufficient to justify granting greater consideration to the child in the later stages of development than the child in the earlier stages. There is no good reason why we should discriminate against unborn children and treat their cases any differently than those of any other human being.
Medical authority has long recognized that an unborn child is in existence from the moment of conception. Prosser and Keeton on Torts, § 55 “Prenatal Injuries” at 368 (5th Ed.1984); 42 Am.Jur.2d “Infants” § 3. Many jurisdictions have extended the standards in both civil and criminal cases to a definition which involves conception and/or fertilization.
A number of cases decided prior to Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), shed light on the difficulty of using viability to identify the beginning of a person’s life. In O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971), the court asked, “If the mother can die and the fetus live, or the fetus die and the mother live, how can it be said that there is only one life? _The phenomenon of birth is not the beginning of life; it is merely a change in form of life.” Id., at 787. In Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955), the court rejected viability and determined that the child’s life begins when it is “quick”, that is it moves in the mother’s womb. Another court, in Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960) gave a lengthy review of the medical and legal history up to that point, and rejected viability as “impossible of practical application.” They said, “[w]e see no reason for denying recovery for a prenatal injury because it occurred before the infant was capable of separate existence. in the first place, age is not the sole measure of viability, and there is no real way of determining in a borderline case whether or not a fetus was viable at the time of the injury..Id. at 504; accord Bennett v. Hymers, 101 N.H. 483,147 A.2d 108 (1958).
*667Justice O’Connor, in Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416 at 457, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), noted that although viability was generally thought, in 1973, to be 28 weeks, ten years later, infants delivered at 22 weeks could survive. “[D]i£ferent technological improvements will move backward the point of viability...” Id., 462 U.S. at 456, 103 S.Ct. 2481. “It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future.” Id., at 457, 103 S.Ct. 2481. “The Roe framework, then, is clearly on a collision course with itself.” Id., at 458,103 S.Ct. 2481. It may be easily said then that logic is in favor of ignoring the time in the pregnancy at which an injury occurs lest we place our criminal system on the same collision course.
In other pre-Roe civil cases, the U.S. District Court for the northern district of Ohio in Steinberg v. Brown, 26 Ohio Misc. 77, 321 F.Supp. 741 (D.C.Ohio 1970), observed that “biologically, when the spermatozoon penetrates and fertilizes the ovum, the result is the creation of a new organism which conforms to the definition of life .... ” Id. at 746. It is true that there have been dramatic advances in medical science, and legislative enactments now require acknowledgement that the ‘born alive’ doctrine no longer serves any evidentiary purpose. However, it can easily be argued that viability is difficult to apply. As noted by the Steinberg panel, “Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.” Id. at 746-747.
It is of interest to note that the pattern of legislative intent by the Kentucky General Assembly can be seen in the adoption of KRS 311.720(6) wherein the legislature specified that the definition of human being as “any member of the species homo sapiens from fertilization until death” is applicable to the laws of the Commonwealth unless the context otherwise requires. The General Assembly has clearly indicated its intent that the term “human being” should have the broadest possible meaning so as to include an unborn child.
In effect, the legislature has abrogated the common law by adopting a definition that considers the unborn child as a human being from the moment of conception. See KRS Chapter 507A Section 1(c), which was enacted by the legislature and signed into law by the governor as emergency legislation on February 20, 2004. It could provide uniformity and stability by recognizing that the unborn child is, from conception onward, in medicine and biology, in logic and law, a person, and that the death of the unborn child by the wrongful act of a third person is actionable both civilly and criminally.
Prosecution of such behavior should be measured in the same way as all other questions of fact: 1) by introducing competent causation evidence established by a preponderance of the evidence in civil cases and beyond a reasonable doubt in criminal cases and, 2) having the case submitted to a jury just as any other factual dispute in our legal system. Unborn children should be treated in the same manner as other human beings.
Obviously, this Court cannot pass on the availability of the newly enacted criminal fetal homicide act. Such matters could be addressed only in a proper case under the new law.
A brief review of the scholarly writings and some of the pertinent cases may be helpful in understanding the history of the born alive doctrine in general, as well as the viability standard in particular. I would be remiss if I ignored the considera*668ble jurisprudence in the area of fetal homicide that I discovered in researching the questions raised.
For a valuable review and analysis for discarding both the requirements of viability and the born alive rule, see Michael Holzapfel, Comments, The Right to Live, The Right to Choose, and the Unborn Victims of Violence Act, 18 J. Contemp. Health L. & Pol’y 431 (2002). But commentaries as far back as 1968 have shown that viability is “impractical of application”. Norman, Torts: Prenatal Injuries — Liability and Live Birth, 21 Okla.L.Rev. 114 (1968).
Since the decision of Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), our legal system has been steadily distancing itself from the reasoning of Justice Oliver Wendell Holmes who declared that a pregnant mother and her unborn child were a “single entity” in Dietrich v. Inhabitants of Northhampton, 138 Mass. 14 (1884). The “born alive” rule is disappearing from the face of American criminal jurisprudence. As the legislature has defined, the life within the mother begins at fertilization. See KRS 311.720(6). It is good to see that we have moved the common law underlying the legislation towards our goal of ensuring the protection of life for all Kentuckians.
“Viability” is a term of art that sets the legal recognition of a separate person’s interests and rights to be distinct from the mother’s as the time at which medical science can sustain the child’s life apart from the womb. Bonbrest, supra, originally used this concept as a means of determining whether the unborn child had a wrongful death claim. The controversial decision of Roe v. Wade, supra, deeply rooted viability into abortion decisions because it used this point in the development of the unborn child to balance the interests of the mother with those of her unborn child. Viability depends on the medical establishment to tell the courts what they are able to do. But interest in cloning and the creation of an artificial womb can mean a possibility that someday viability may coincide with fertilization.
As a standard in the world of abortion, viability was adopted as the last point at which a mother could opt to abort the unborn child in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). But Roe and Casey, supra, inserted the clause “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Casey, 505 U.S. at 879,112 S.Ct. 2791 (quoting Roe, 410 U.S. at 164-165,-93 S.Ct. 705). This “health of the mother” exception is used to justify abortions that are commenced beyond viability. An ordinary person might understand the words to mean that the unborn child may be killed because it poses a threat to the life of the mother. Justice Thomas argues the same in his dissenting opinion in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) and the majority said, “He is wrong.” See Stenberg, 530 U.S. at 931, 120 S.Ct. 2597. Therefore, “Health” has been vastly enlarged. So, despite the so-called health exception, the concept of viability is the line dug in the sand for those people who discuss abortion. The Roe line of cases, however, deals with a mother and an unborn child. In this case, we are determining the rights of the unborn child and mother vis-á-vis criminal acts of others. Viability has nothing to do with whether the unborn child, or other nomenclature referring to the being created and set into independent motion at fertilization or conception, is recognized as a person with rights and privileges under the law.
*669In Wiersma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D.1996), the South Dakota Supreme Court wisely distinguished between using viability as an abortion standard or as a criminal standard. Their purpose was to determine whether there are two separate lives existing in relation to third parties. It stated, “Nothing in Roe prohibits the Legislature from including a nonviable fetus in its definition of a person under our State’s wrongful death act”. Wiersma, 543 N.W.2d at 790, note 2. They distinguished fetal assault and homicide cases away from acts committed during abortion. Maple Leaf had argued that an inconsistency would be created by allowing a cause of action for the wrongful death of a nonviable fetus and at the same time allowing an abortion up to the 24th week of pregnancy. That court stated that if it accepted such an argument, “someone could fatally injure an unborn child by a nonconsensual, wrongful act and still avoid civil liability because the child was not yet viable. This would, ironically, give the tortfeasor the same civil rights as the mother to terminate a pregnancy.” Id., at 791. This analysis is clear and consistent with Roe, which allowed the mother to choose to abort the unborn child, but not anyone else, not even the father. Therefore, simple equity instructs that others who have less tenable rights than the father are estopped from using Roe as a shield from civil and criminal liability here because those interests sprung from the mother’s unique position and the next closest to the mother, the father, does not qualify. Therefore, a third party cannot claim the same interests granted only to the mother. At least one other court has rejected Maple Leafs type of argument and upheld the distinction on purpose. See People v. Ford, 221 Ill.App.3d 354,163 Ill.Dec. 766, 581 N.E.2d 1189 (1991). (“A woman has a privacy interest in terminating her pregnancy; however, defendant has no such interest.”).
For any purpose other than abortion, many jurisdictions have abandoned viability because it has no magic sense in identifying the beginning of a person’s life. California, which has defined murder as the “unlawful killing of a human being, or a fetus, with malice aforethought”, declined to use viability as an element of murder. There, the charge of murder will stand as long as the state can show that the unborn child was beyond the embryonic stage, that is, seven to eight weeks. See People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872 P.2d 591 (1994). Other standards are fertilization and quickening. Quickening is a point prior to viability, somewhere between 16 and 18 weeks, when the mother feels the first movements of the child in her womb. Several states have used quickening as the point after which criminal actions for harm to the fetus may attach. But quickening is also only a way-point from the true beginning of individual human life which is conception. Viability is a tool that can be used to expand the proper approach to ascertaining the legal and natural beginning of human life in the unborn child. The advances of medical science are limitless and can be easily applied to enlarge the viability concept to currently unknown dimensions, including fertilization and conception.
These movements away from born alive rules tend to place the beginning of life at its source, as proved by medical science, fertilization or conception. Louisiana, North Dakota, Missouri, and several others have had statutes defining a separate human life from fertilization or conception. The Federal Government has recently enacted the Unborn Victims of Violence Act (HR 1997). Our legislature passed KRS 311.720(6) with the definition of life begin-*670rang at fertilization. We should put the force of the common law on similar footing.