concurring.
I concur in the result reached by the majority.
I. WRONGFUL BIRTH
At first blush, the majority opinion appears to apply art. I, sec. 13 of the Texas Constitution in such a way as to sustain a judicial innovation, a “wrongful birth” cause of action, and strike down a well-recognized legislative prerogative, a statute of limitation. This is not the case. Rather, what we do today is sustain a well-established cause of action against a novel exercise of legislative power.
In Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975), this court first permitted the recovery by parents of the expenses necessary for the care and treatment of a child’s physical impairment, when those expenses were proximately caused by negligent prenatal advice. Like many other courts, we found “wrongful birth” to be a convenient description for such a fact setting. The pleadings in Jacobs, however, as well as the pleadings of the Nelsons in the instant case, are couched in terms of negligence; the label in each case has been added by the courts.
This observation is neither academic nor trivial. Rather, recognition that we are dealing with nothing more nor less than the traditional elements of a negligence cause of action is pivotal to resolution of both the *926“wrongful birth” and “wrongful life” facets of this appeal.1
It naturally follows that I cannot agree with the majority opinion’s statement that “[i]n Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975), we approved a cause of action for ‘wrongful birth,’ the suit that the parents have now brought in their own behalf.” 678 S.W.2d at 923 (emphasis added). Were this true, art. I, sec. 13 could not act as a constitutional bar to the application of art. 5.82, sec. 4 of the Insurance Code to the Nelsons’ cause of action. This court has repeatedly stated that art. I, sec. 13 of the Texas Constitution protects “well-established common law” causes of action. See, e.g., Sax v. Votteler, 648 S.W.2d 661, 665 (Tex.1983); Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 955 (1955). The statute in question took effect less than four months after Jacobs v. Theimer. Four months cannot possibly be sufficient time for a new cause of action to become well-established at common law, to trigger the protection of the Texas Constitution. More precisely, the Nelsons’ cause of action sounds in negligence and alleges medical malpractice; such a cause of action was well-established in this State long before Jacobs v. Theimer and fully merits the protection of art. I, sec. 13 of the Texas Constitution.
Art. 5.82, sec. 4 of the Insurance Code, although referred to as a “statute of limitation,” is by no means a traditional limitation act. In fact, a number of courts and commentators have begun to differentiate between such statutes and traditional limitation acts, and would term legislation such as art. 5.82, sec. 4 a “statute of repose.” See, e.g., Note, Medical Malpractice Statute of Repose: An Unconstitutional Denial of Access to the Courts, 63 Neb.L. Rev. 150,153 (1983); Comment, Statutes of Repose in Products Liability: Death Before Conception, 37 Sw.L.J. 690-2 (1983) (classifying art. 5.82, sec. 4 as a “statute of repose”). Texas courts have traditionally used the terms “limitation” and “repose” interchangeably, since one purpose of a statute of limitation is to permit repose. See, e.g., Davis v. Howe, 213 S.W. 609, 611 (Tex.Comm’n App.1919, judgmt adopted). The recent trend to categorize statutes as either “limitation” or “repose” is only an attempt to highlight by semantic distinction a number of very real differences in the wording, purpose, and effect of many recent limitation statutes when compared with more traditional acts.
A traditional statute of limitation is usually intended to compel a plaintiff to bring a claim to court within a reasonable period of time after the cause of action arises. Such a statute encourages diligence, and has as its primary purpose the prevention of stale claims. Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977). A “statute of repose,” on the other hand, does not run from the time a cause of action arises, but from some other date or event selected by the legislature. This is so because it generally has some purpose other than encouragement of diligence on the part of plaintiffs. Art. 5.82, see. 4, for example, was designed to promote stability in insurance rate-making. See Keith, The Texas Liability and Insurance Improvement Act — A Survey and Analysis of Its History, Construction and Constitutionality, 36 Baylor L.Rev. 265, 300-01 (1984). As a result, a “statute of repose” may operate — as in this case — to bar access to courts for the remedy of a legal wrong despite the exercise of all possible diligence by a plaintiff in prosecuting a claim.
Texas courts traditionally accord wide deference to the legislature’s right to establish statutes of limitation, but even that deference has long had limits.
“The legislature may provide a shorter period of limitation for existing causes of action. It may make a statute of limitation for causes when none existed before, *927but it cannot, by so abbreviating the time in which suit must be brought, take away the right of action altogether.”
Wright v. Hardie, 88 Tex. 653, 32 S.W. 885, 886 (1895) (emphasis added). When a statute, whether it be termed one of “limitation” or of “repose,” eliminates a plaintiffs access to the courts for redress of an injury, despite the exercise of all possible diligence, it is susceptible to constitutional challenge under art. I, sec. 13 of the Texas Constitution.
In the case at bar, the constitutional analysis is not difficult. This court need look no further than Sax v. Votteler, 648 S.W..2d 661 (Tex.1983), a decision scarcely one year old, involving the same statutory provision, the same constitutional challenge, and decided by a unanimous court.
Sax set forth a two-pronged test for the constitutionality of a statute challenged as violating the Texas “Open Courts” provision. The first question is whether the litigant has a “cognizable cause of action that is being restricted.” Sax, 648 S.W.2d at 666. Lori Beth Sax’ cause of action in negligence for medical malpractice was sufficient to invoke the protection of the Texas Constitution; the Nelsons’ cause of action is of the same nature and so deserves the same protection.
The second prong requires the court to balance the purpose and basis of the statute against the restriction on the litigant’s rights. Id. This court recognized a legitimate legislative purpose for art. 5.82, sec. 4 of the Insurance Code in Sax, 648 S.W.2d at 667; the point requires no further discussion.
In determining the extent of the restriction on a litigant’s rights, a court must not examine the effect of the challenged statute in isolation. The legislature can avoid an otherwise unconstitutional result by providing a substitute remedy, Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 955 (1955), or by leaving a reasonable alternative at common law. Sax, 648 S.W.2d at 667.
In Sax, this court noted that the effect of the statute was to deny a minor plaintiff a remedy for a well-established common law wrong. Lori Beth Sax was prohibited by law from bringing suit on her own behalf during her minority, and was barred from suit upon coming of age by the language of art. 5.82, sec. 4. This court noted and rejected the alternative of a suit by parents on the child’s behalf, reasoning that this did not provide adequate protection for the child’s rights. Sax, 648 S.W.2d at 667. The statute was therefore unconstitutional, so far as it affected a minor plaintiff.
The parents’ cause of action in Sax stood on a different footing. Nothing prohibited them from suing on a known cause of action during the two years permitted by statute. The two-year period thus presented a reasonable alternative for the parents, and art. 5.82, sec. 4 was not unconstitutional as it applied to them.
In Sax, this court was not called upon to decide the constitutionality of the two-year provision as applied to an adult who — due to the undiscoverable nature of a medical problem — could not have brought suit within the statutory period. The answer is nonetheless clear. The restriction upon the rights of the Nelsons in this case are at least as severe as those upon the minor plaintiff in Sax. Lori Beth Sax was prohibited by statute from bringing suit even had she acted with utmost diligence at her first practical opportunity, the age of majority. The Nelsons were prohibited by the same statute from bringing suit even had they acted with utmost diligence at their first practical opportunity, discovery of the injury-
There is only one distinction between Sax and the instant case. Lori Beth Sax had an alternative, the possibility of suit by her parents on her behalf. That alternative was held to be inadequate to protect her rights. The Nelsons have no alternative, under the facts of this case. If art. 5.82, sec. 4 was unconstitutional as applied to Lori Beth Sax, it must equally be held unconstitutional here. As one student commentator has recently noted:
*928“The effect of this restriction, like that on a minor’s cause of action in Sax, is not merely to place an outside limit on when a cause of action may be brought. Instead, it eliminates the right to bring a legal action. It is unreasonable to assert that this class of litigants must be sacrificed for lower malpractice rates. They, as much as any other victims of malpractice, are entitled to their day in court. Sax opens the courthouse doors for minors who were left unprotected by the statute. Its reasoning should ultimately do the same for injured parties who are prevented from bringing their claim because they could not discover the injury within the two-year limitation period.”
Note, Sax v. Votteler, 21 Hous.L.Rev. 295, 309 (1984).
Since Sax v. Votteler controls this case, I find it unnecessary to decide the issue of whether art. 5.82, sec. 4 has legislatively abolished the “discovery rule.” While this might well have been the legislature’s intent, the initial question should be whether, considering the language of the statute itself, the legislature has in fact done so. I would reserve that question for an appropriate case.
II. WRONGFUL LIFE
Like the majority, I decline to recognize a legally cognizable claim in negligence for “wrongful life.” I differ, however, with the emphasis of the majority opinion. I would place no reliance whatever on a public policy placing a “high value ... on human life, rather than its absence,” 678 S.W.2d at 924, as courts are not equipped to place a value on non-existence. Nor do I feel that the difficulty of assessing or calculating damages deserves any consideration as a reason for declining to permit a “wrongful life” claim. It is well settled that
“There is ... no general requirement that the injured person should prove with ... definiteness the extent of harm that he has suffered as a result of the tort-feasor’s conduct. It is desirable ... that there be definiteness of proof of the amount of damage as far as is reasonably possible. It is even more desirable, however, that an injured person not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of the harm he has suffered.”
Restatement (Second) of Torts § 912, comment a (1979).2
The reason for permitting the Nelsons a cause of action, but denying a similar cause of action to their son is simple: the claim of the parents arguably contains all the elements for a prima facie case in negligence; the claim of the child does not.
Viewing Dr. Krusen’s alleged conduct from the standpoint of the parents, under the summary judgment evidence and pleadings a viable suit in negligence is presented. The elements of actionable negligence are duty, a breach of that duty, an injury to the person owed the duty, and proximate cause. Pullman Co. v. Caviness, 53 Tex.Civ.App. 540, 116 S.W. 410 (1909, writ ref’d). The duty to give accurate medical advice runs from the doctor to the patient. That duty was arguably breached. Since the parents allege that they would have sought an abortion had they known Mrs. Nelson was a genetic carrier of Duchenne muscular dystrophy, proximate cause must be presumed. The injury consists of medical bills that would not have been incurred by the parents, but for the birth of Mark Nelson.
The “wrongful life” cause of action must be viewed from a different perspective, that of the child. With the child as a plaintiff, a suit in negligence is difficult to conceptualize. Courts examining “wrongful life” suits have had difficulty with virtually every element of the cause of action — the nature of the duty, if any, owed *929to an unborn child under these circumstances, the concomitant question of breach, and the issue of proximate cause in a situation where both the child’s life and his or her defective condition are due to the same negligent act.
I am most concerned by the element of injury. We cannot compare Mark Nelson’s current condition, life as a victim of muscular dystrophy, with the alternative of a normal, healthy childhood. Were this so, the fact of injury would not be in issue, and the sole question would be the calculation of the extent of damages. Under the summary judgment evidence, the same medical advice that was the proximate cause of his affliction must be assumed to be the cause of his life itself. To determine whether Mark Nelson has suffered an injury in fact, then, his life with physical impairment must be compared to the alternative of nonexistence.
This calculation cannot rationally be made, as man knows nothing of nonexistence, and can assign it neither a positive nor a negative value. Unfortunately, the fact of injury is a prima facie element in a cause of action for negligence. Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605 (1935). It is not fatal to a cause of action in negligence that a plaintiff cannot prove the quantum of injury; but a plaintiff must always establish the existence of injury. This is an impossible burden for a “wrongful life” plaintiff to meet. Since the initial burden of proof of each element of a negligence cause of action is upon the plaintiff, and one element is rationally unprovable in a “wrongful life” setting, a negligence suit cannot be maintained. The absence of any injury in fact is also a primary factor in the refusal of New York courts to recognize a “wrongful life” cause of action. See, e.g., Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807 (1978); Alquijay v. St. Luke’s-Roosevelt Hospital Center, 99 A.D.2d 704, 472 N.Y.S.2d 2, 3 (1984).
There is no inconsistency between permitting a cause of action for the parents, but not for the child. The difference is the identity of the parties. For the parents, the alternatives to be considered in determining whether there has been any injury in fact are no child, and no medical expenses, or a child with physical impairment resulting in medical expenses the parents are obligated to pay. The fact of injury is apparent. For the child, though, the alternatives are existence in an impaired state, or nonexistence. The fact of injury is not only not apparent, but unknowable.
The distinction between the parents’ and child’s cause of action has also been explained in a somewhat different fashion:
“When the plaintiff alleges that his own birth was wrongful, in effect he asks the court to judicially determine that he should not have been allowed to live, but when another person such as a parent alleges that the infant should not have been born, the parent does not seek to negate his own present existence. The parent is in reality seeking damages for injuries causally related to the fact of birth, but not for the birth itself. Thus, the parents are not placed in the anomalous position of trying to sue themselves into oblivion, as are the children.”
Comment, Wrongful Birth: The Emerging Status of a New Tort, 8 St. Mary’s L.J. 140, 145 (1976) (emphasis added).
It is worth noting that most other jurisdictions make the same distinction as this court makes today, finding no logical inconsistency between permitting a cause of action for the parents, but not for children. As the Supreme Court of Georgia observed earlier this year:
“An action brought by a child against the parents or physician on the theory that because of his illegitimacy or birth defects he would have been better not born has found almost no support in the law. However, most jurisdictions now allow an action by parents against the physician' for wrongful pregnancy or wrongful conception.”
Fulton-DeKalb Hospital Authority v. Graves, 252 Ga. 441, 314 S.E.2d 653, 654 (1984); see also Annot., 83 A.L.R.3d 15 *930(1978). In at least three leading decisions, a cause of action for the parents has been permitted, but a similar cause of action for the child denied in the same decision. See Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979), aff'd in part, rev’d in part, 497 Pa. 77, 439 A.2d 110 (1981); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975).
Recently, California and Washington courts have permitted a limited right of recovery for a child presenting a “wrongful life” claim. See Turpin v. Sortini, 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337 (1982); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983). Even more recently, New Jersey has approved the same result — permitting a child’s recovery of extraordinary medical expenses — al-biet on a different rationale. Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984). It is tempting to join these courts in fashioning some relief for a severely handicapped child, when that child may be burdened with crushing medical expenses for the remainder of his natural life.
A court should not, however, discard established principles of tort law sub silentio in an attempt to reach a “right” result. Close examination of the California and Washington opinions reveals such an unexplained gap in the decisional reasoning.
The California Supreme Court distinguished between general and special damages in a “wrongful life” setting, denying the former, yet permitting the latter. Explaining why general damages could not be assessed, the Turpin court observed that “the problem is not ... simply the fixing of damages for a conceded injury, but the threshold question of determining whether the plaintiff has in fact suffered an injury by being born with an ailment as opposed to not being born at all.” 643 P.2d at 963. The court also noted that “it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born.” Id.
Thus, the California Supreme Court, in denying general damages, seems to have explicitly conceded that a prima facie element of the tort was not established. In deciding to award special damages, however, the Turpin court ignored the reasoning that prevented an award of general damages. The problem of establishing the fact of injury was simply passed over, and all discussion focused on the nonspecula-tive nature of a recovery for medical expenses.
The Washington decision suffers from the same logical weakness. In Harbeson v. Parke-Davis Inc., 98 Wash.2d 460, 656 P.2d 483 (1983), the Supreme Court of Washington adopted both the “wrongful birth” and “wrongful life” positions. The decision was explicitly treated as a negligence action, and the Washington court was at pains to place both theories in the traditional negligence framework, discussing each of the four elements of negligence in turn for both “wrongful birth” and “wrongful life.”
The Washington Supreme Court acknowledged that “[t]he most controversial element of the [wrongful life] analysis in other jurisdictions has been injury and the extent of damages,” and conceded that “measuring the value of an impaired life as compared to nonexistence is a task that is beyond mere mortals, whether judges or jurors.” Harbeson, 656 P.2d at 496. Nonetheless, the Washington Supreme Court simply proceeded to a discussion of the calculation of damages, without explanation of how the difficulty in determining the existence of the element of injury had been overcome.3
*931A recent decision, Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984), deserves particular attention, inasmuch as an earlier New Jersey case, Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), was widely recognized as a leading decision on the “wrongful life” issue. Like California and Washington, the New Jersey Supreme Court recognized in denying a claim for general damages that “[t]he crux of the problem is that there is no rational way to measure nonexistence.” Procanik, 478 A.2d at 763.
Nonetheless, the New Jersey court awarded special damages. The reasoning of the court is explicit. Quoting a dissenting opinion in Gleitman, the New Jersey court observed that “while logical objection may be advanced to the child’s standing and injury, logic is not the determinative factor _” Procanik, 478 A.2d at 762. The court added: “Whatever logic inheres in permitting parents to recover for the cost of extraordinary medical care incurred by a birth-defective child, but in denying the child’s own right to recover those expenses, must yield to the inherent injustice of that result.” Id. 478 A.2d at 762. The conclusion is clear:
“We need not become preoccupied ... with ... metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.”
Id. 478 A.2d at 763.
While the sentiments of the New Jersey, court may be laudable, this court is precluded from reaching such a result. To reiterate, the pleadings and briefs of plaintiffs in this case are based in negligence. While this court is not adverse to reexamining and modifying traditional negligence concepts to meet changing social needs, see Otis Eng’g Corp. v. Clark, 668 S.W.2d 307 (Tex.1983), it is properly unwilling to take the step required by a “wrongful life” plaintiff: complete waiver of the requirement of injury in a negligence cause of action. Once such a step is taken, it is difficult to envision any principled basis for refusing to extend the reasoning to other elements and other situations.
This court neither addresses nor decides the question of whether some day, under some different theory, a plaintiff might prevail under similar facts. “New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none has been recognized before.” W. Prosser and W. Keeton, The Law of Torts § 1 (5th ed. 1984). The claim of Mark Nelson, however, simply fails to state a cause of action in negligence and must be denied.
. Despite the fact that such labels occasionally obscure as much as they clarify, they will be used for convenience in this opinion, as they are in widespread use by courts and commentators. See discussion in University of Ariz. Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294, 1296 n.1 (1983); Fassoulas v. Ramey, 450 So.2d 822, 825 n. 1 (FIa.1984) (Ehrlich, J., dissenting); Nanke v. Napier, 346 N.W.2d 520, 521 (Iowa 1984).
. For a similar reason, Restatement (Second) of Torts § 920 (1979) is irrelevant to my decision. Sec. 920 applies only when calculating damage awards; it presupposes that the plaintiff has established the element of harm. Since a "wrongful life” plaintiff cannot meet this initial burden, § 920 principles need never be considered.
. The failure of the California and Washington courts to establish the logical basis for a "wrongful life” action — the existence of harm or injury — has not escaped the attention of commentators. With reference to the California decision in Turpin, it has been observed that “[t]he court's unsuccessful attempts to justify an award of special damages betray its failure to appreciate fully the fundamental flaw of a wrongful life claim. No wrongful life plaintiff, even with severe defects, can prove she has suffered harm, and the obstacle is not merely *931that damage calculations are speculative. The court acknowledged this fact, yet reached an inconsistent result. No damages of any kind can be awarded because it is impossible to know if the plaintiff is worse off as a result of the defendant's negligence." Note, Turpin v. Sortini: Recognizing the Unsupportable Cause of Action for Wrongful Life, 71 Cal.L.Rev. 1278, 1292-93 (1983).
Likewise, Harbeson v. Parke-Davis, Inc. has drawn justified criticism because the Washington court’s “logic does not support its conclusions. It failed to demonstrate that birth with defects is an injury to the child. Because this essential premise is unsupported, no duty to the child should be imposed on the physician to prevent the child’s birth with defects, and no damages for wrongful life should be allowed to compensate for the unproven injury.” Note, Washington Recognizes Wrongful Birth and Wrongful Life — A Critical Analysis, 58 Wash.L. Rev. 649, 677-78 (1983).