dissenting.
I respectfully dissent from the majority opinion because it does not accept the concept of an unborn child as a human being who should be given legal protection.
The majority opinion states that the baby was born full-term, without birth defects, and that his size and weight were appropriate for his gestational age. However, my review of the record indicates that at the time of delivery, the doctors discovered meconium staining of the amniotic fluid and admitted the child to the neonatal intensive care nursery. He developed neonatal abstinence syndrome which occurs as a result of passive addiction to drugs by exposure to drugs through the mother during pregnancy. Upon severance of the umbilical cord, the drug supply was ended. The child was found to have a fever, was very irritable and cried a great deal. He was tremulous, jittery and could not sleep well. His skin was mottled because the nervous control of the blood vessels in his skin was disturbed. The majority opinion states the baby was released in good health.
The majority opinion imprecisely frames the legal issue as “whether the criminal abuse statute applies to the present fact situation” and concludes that it does not. In so doing, the majority has simply rewritten the statute. At oral argument, the issue developed as to where we should draw the line. In my view, the line should be drawn where the activities of one human being cause injury or abuse to another human being. As KRS 500.080(12) defines a person as a “human being,” and KRS 508.110 defines criminal abuse in the second degree as wantonly abusing another person or permitting another person of whom he has actual custody to be abused, there is little doubt that the condition of the child at birth was caused by exposure to drugs which could have resulted in a cessation of breathing which could have resulted in permanent brain damage or death.
Recent majority decisions of this Court with which I fully disagree appear to indicate that what it calls a fetus is not a person. Hollis v. Commonwealth, Ky., 652 S.W.2d 61 (1983), and Jones v. Commonwealth, Ky., 830 S.W.2d 877 (1992). Despite this, all standard dictionary definitions define the term “person” as a human being. Civil law has long recognized that an unborn child is a person. 42 Am.Jur.2d Infants § 2 states that biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb, and as a general rule of construction in the law, a legal personality is imputed to an unborn child for all purposes which would be beneficial to the infant after birth. Prosser’s 4th Edition, published in 1971, summarizes the law to the effect that medical authority has long recognized that the child is in existence from the moment of conception. All of the above views, as well as an extended discussion of the subject, can be found in my concurring opinion in Jones v. Commonwealth, supra. See also my dissent in Hollis, supra.
*286The majority opinion, however, grasps at other sources for its authority and shrewdly builds on Hollis and Jones to reach the legal conclusion that criminal law does not protect the child who is born alive and suffers withdrawal effects of drugs consumed by the mother during pregnancy.
I must fully agree, as I did originally, with Justice Lambert’s concurring opinion in Jones, when he said in part:
We should hold that a viable fetus enjoys full protection of the criminal law and that the terms “person” and “human beings” include viable unborn children.
It is not the prerogative of this Court to rewrite a criminal statute and it is not our prerogative to refuse application of the statute because we disagree with its reach. Such are matters of legislative prerogative and unless constitutional rights are thereby violated, this Court has no business fretting, as has the majority, over whether a pregnant woman could be prosecuted if she ingested alcohol, nicotine, prescription and non-prescription painkillers, or engaged in dangerous sporting activities. The majority has interjected the foregoing false issue as a means of justifying its refusal to apply a statute which was clearly violated by appel-lee’s injection of cocaine into her jugular vein when she was eight months pregnant.
It is with great sadness and disappointment that I am forced to conclude that in Kentucky the majesty of the law is unable or unwilling to protect innocent unborn children from harm caused by the conduct of another human being.
LAMBERT, J., joins this dissenting opinion.