concurring.
The power of a court to order a competent adult to submit to surgery is exceedingly limited. Indeed, until this unique case arose, I would have thought such power to be nonexistent. Research shows that the courts generally have held that a competent adult has the *90right to refuse necessary lifesaving surgery and medical treatment (i.e., has the right to die) where no state interest other than saving the life of the patient is involved. Annot., Patient’s Right to Refuse Treatment, 93 ALR3d 67, § 3 (1979).
On the other hand, one court has held that an expectant mother in the last weeks of pregnancy lacks the right to refuse necessary lifesaving surgery and medical treatment where the life of the unborn child is at stake. Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, supra; see also In the Matter of Melideo, 390 NYS2d 523 (88 Misc. 2d 974) (1976); Re Yetter, 62 Pa. D&C2d 619, 623 (1973).
The Supreme Court has recognized that the state has an interest in protecting the lives of unborn, viable children (viability usually occurring at about 7 months, or 28 weeks). Roe v. Wade, 410 U. S. 113, 160, 164-165 (93 SC 705, 730, 732, 35 LE2d 147) (1973).
The mother here was in her last week of normal pregnancy (the 39th week). She had diligently sought prenatal care for her child and herself, except for her refusal to consent to a caesarean section. She was due to deliver on Monday, January 26, and the medical testimony showed that the birth could occur at any time within 2 weeks of that date. The medical testimony showed further that the child’s chances for survival decreased once labor commenced and that a 30 minute delay after bleeding commenced could be fatal to the child.
In denying the stay of the trial court’s order and thereby clearing the way for immediate reexamination by sonogram and probably for surgery, we weighed the right of the mother to practice her religion and to refuse surgery on herself, against her unborn child’s right to live. We found in favor of her child’s right to live.
Although we are not called upon here to decide whether the intervention of the juvenile court was necessary, I for one approve the trial court’s action in exercising jurisdiction over the unborn child as juvenile judge and over the mother as judge of a court of equity. According to the testimony, this child was facing almost certain death, and was being deprived of the opportunity to live. For this reason, Code Ann. § 24A-401 (h) (5) is inapplicable.1
I am authorized to state that Justice Marshall joins in this concurring opinion.
According to newspaper reports, “... a third ultrasound test performed Friday night showed the placenta had moved — a most unusual occurrence . . .” Atlanta Journal/Constitution, January 25, 1981.