Damasiewicz v. Gorsuch

Henderson, J.,

delivered the following concurring opinion.

I agree with the conclusion reached by the Chief Judge in his exhaustive review of the authorities. However, since I arrive at the result by a slightly different route and the case is both novel and important, I think a few caveats are in order.

I attach little weight to the alleged progress of medical science. Obstetrics is probably the oldest branch of medicine, practiced continually since the first operation upon Adam’s rib, and the fact that an infant may be delivered and survive, before the full period of pregnancy, was known to antiquity and is attested by the birth of the historical Julius Saesar and the legendary Macduff. Nor are we at liberty to substitute modern medical views for those of the common law, in cases where the common law rule is well established. The problem is to determine the common law rule.

The rule that a child is in existence from the moment of conception, applicable in testamentary situations, has no application here. It seems to stem from the ecclesiastical law, although a somewhat analogous rule was applied in the Earl of Bedford’s case, a common recovery to dock the entail in accordance with principles of the land law which owed nothing to extraneous sources. Of *442 course, the common law is full of borrowings. The whole concept of adoption is said to have been lifted from the civil law. In any event, I base my argument upon the rule of the early criminal law, as stated by Coke and Blackstone, that a child en ventre sa mere is a person separate and separable from its mother. Murder and manslaughter are crimes against the person, and also torts. Indeed, the earliest form of reparation for such offenses was by money payments to relatives and dependents. Intentional torts were the only ones recognized until the comparatively recent concept of negligence was developed. The comments in the Irish case, and the caveat in the Restatement, seem to recognize, or at least leave open, the contention that recovery might have been had for an intentional prenatal injury at common law, as a trespass to the person, before trespass on the case was invented.

If this is a correct premise, several conclusions would seem to follow: (1) the rule should not be applicable unless it is shown that the embryo has acquired a human personality and becomes viable. I do not understand from Blackstone’s comment as to the time when a child becomes “quick” or “able to stir in the womb” that he visualized an intermediate period between conception and the period of viability, during which a child might be considered alive or “animax” for purposes of criminal liability. Liability in tort should extend no further. (2) The same reasoning that would support recovery for an intentional tort would support recovery for a negligent one, so far as the capacity of the child is concerned. But there may be important differences in the extent of the duty owed. Many authorities, including the Restatement, seem to limit recovery to the reasonable and foreseeable consequences of an unintentional act. Sometimes the thought is expressed in terms of legal duty, sometimes of proximate cause. Thus there may be a valid distinction in law as there is in fact between negligent injury by an obstetrician undertaking a delivery, and negligent injury by a carrier who may be wholly *443 unaware of the pregnancy of a passenger. I merely suggest the possibility of reconciling those lines of cases, neither of which is before us. (3) The doctrine of contributory negligence is an integral part of the concept of negligence. To what extent the child’s right of action may be barred by negligence of the mother is another question that is left open because it was not argued in this appeal.

I agree that the rule of stare decisis has no application, in the absence of any decision in this State, or in the English reports. The decisions of other State courts, and the rule adopted by the Restatement, are not controlling, especially where we find a respectable, and growing, body of opinion to the contrary. It is unfortunate, however, that we are required to deal with the problem on demurrer, where allegations are necessarily general and may never be supported by the facts developed. I think it should be emphasized that we are now deciding only the general proposition and that all subsidiary questions are reserved.