Chrisafogeorgis v. Brandenberg

MR. JUSTICE RYAN, dissenting:

I do not agree that a cause of action exists under our Wrongful Death Act for death, prior to birth, caused by an injury to an unborn viable fetus. Before discussing the basic reason for my disagreement I wish to point out that the same “incongruous” or “bizarre” results which the opinion envisages as being possible if the line of demarcation is set at birth are possible if the line of demarcation is set at the inception of viability. One difference is that birth is a definite, precise and observable occurrence. Viability on the other hand is uncertain, indefinite and depends upon several factors other than the length of pregnancy. In fact, one author has described viability as “a most unsatisfactory criterion, since it is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development.” (Prosser, Handbook of the Law of Torts, 4th ed. 1971, 337.) As long as we are indulging in judicial legislation, why set the line of demarcation at viability? Why should not a cause of action exist for the death of a fetus in its previable state?

The opinion quotes from Kwaterski v. State Farm Mutual Automobile Ins. Co., 30 Wis. 2d 14, 20 , 148 N.W.2d 107, 110 , which conjectures a supposed incongruous result of permitting recovery for an injury to an unborn child but not permitting recovery for the wrongful death of an unborn child. The same incongruous result is possible in this State when the line of demarcation for wrongful death purposes is placed at viability because two appellate court decisions in Illinois have held that a cause of action for prenatal injuries is not dependent upon viability. Daley v. Meier, 33 Ill. App. 2d 218 ; Sana v. Brown, 35 Ill. App. 2d 425 .

The opinion refers to the reliance which this court in Amann v. Faidy, 415 Ill. 422 , placed on the language of the Court of Appeals of New York in Woods v. Lancet, 303 N.Y. 349 , 102 N.E.2d 691 , to the effect that a viable fetus has a separate existence recognizable in law. However, neither Amann nor Woods involved the death of a child prior to birth. In fact, the Court of Appeals of New York has held that neither Woods nor the decisions of other cases which permit a child to recover for injuries inflicted before birth justify the conclusion that a fetus is a “person” before it is born within the meaning of the statute. (In re Peabody (1959), 5 N. Y.2d 541, 158 N.E.2d 841 .) In Endresz v. Friedberg (1969), 24 N. Y.2d 478, 248 N.E.2d 901 , the Court of Appeals of New York, in holding that the legislature, when it enacted the New York statute creating a cause of action for wrongful death in 1847 did not intend to create a cause of action for the death of an unborn fetus, stated:

“Indeed, it was not until 1951, more than 100 years later, that this court — overruling a longstanding decision (Drobner v. Peters, 232 N.Y. 220 , 133 N.E. 567 , 20 A.L.R. 1503 [1921] —decided that ‘a child viable but in útero, if injured by tort, should, when born, be allowed to sue.’ (Woods v. Lancet, 303 N.Y. 349, 353 .) If, before Woods, a child so injured had no right of action, still less was such an action intended to lie on behalf of one who, never seeing the light of day, was deprived of life while still in its mother’s womb.”

The court in Endresz distinguished between the updating of a common law action by judicial decision which was the effect of the decision in Woods and the reinterpretation of a statutory cause of action which had been created by the legislature.

Basic to my disagreement with the majority opinion is the fact that we are here considering not a common-law cause of action but one created solely by the legislature. It is my belief that the legislature when it created the cause of action in Illinois did not intend to create a cause of action for the death of an unborn fetus. The statute has never been so interpreted and for this court to now say that the legislature did create such a cause of action is just pure judicial legislation. I am not discussing the logic of the situation nor whether justice requires that such a cause of action be created. I am simply pointing out that, unlike a common-law negligence action, no right of recovery exists for the death of a person unless it is created by the legislature. If such a cause of action is created it should come about through legislative action. An unborn fetus is plainly not a person within the meaning of our present Wrongful Death Act.

At common law there was no cause of action for the wrongful death of an individual, and there is no such cause of action today except as provided by the legislature. (Li Petri v. Turner Construction Co., 36 Ill.2d 597 .) The statute alone is the source of the right to maintain an action, and being in derogation of the common law it must be strictly construed. (Wilson v. Tromly, 404 Ill. 307 .) In Wilson this court stated that “under the provisions of this act the legislature, having conferred a right of action for death by wrongful act, may determine who shall sue, and the conditions under which the suit may be brought.” 404 Ill. at 310 .

Our present act is almost identical to the original statute enacted by the General Assembly of this State in 1853. Our original statute was a copy of the New York statute of 1847, which in turn was substantially a copy of the first two sections of a statute enacted in England in 1846, commonly known as Lord Campbell’s Act (9th and 10th Victoria, ch. 93). (See S.H.A., ch. 70, sec. 1, Historical Note.) The legislature did not define the word “person” in the 1853 act, nor has it since that date defined the word as used in the statute.

The 1884 Massachusetts case of Dietrich v. Inhabitants of Northhampton, 138 Mass. 14 , announced as the basis for its decision the common understanding at that time of the legal status of a fetus. That case reasoned that a fetus was not a separate and distinct legal entity from its mother. The history of actions for .prenatal injuries indicates that there was no change in this general understanding until 1946. (See Prosser, Handbook of the Law of Torts (4th ed. 1971) 335.) It would appear therefore that in 1853, when our legislature enacted our wrongful death statute, the common and accepted meaning of the word “person” did not include a fetus, whether it was viable or not. It is well established that the words of a statute must be taken in the sense in which they were understood at the time that the statute was enacted. (50 Am. Jur. Statutes, sec. 236.) To now, through judicial decision, say that a fetus which did not survive birth is a person within the meaning of the statute would be giving to that word a meaning which was not contemplated by the legislature when the statute was enacted and one which had not been given to it by judicial decision anywhere in this country for nearly 100 years thereafter. During this period of time the legislature had occasion to amend our Wrongful Death Act on several occasions (primarily in the area of limitations on recovery), but in spite of the decisions of this court and other jurisdictions that denied recovery for prenatal injuries the legislature did not amend the Act to specifically create a cause of action for death of an unborn fetus. If there is to be an extension or a modification of the statutory right to include the wrongful death of a fetus, the same should be accomplished through legislative action.

Aside from the determination of whether or not a cause of action should be created, there exists the further question of whether it should arise only when the injury causing the wrongful death was inflicted after the fetus has attained viability or whether it should be extended to also include a nonviable fetus. Further consideration should also be given to what the measure of damages in such an action should be. (See Prenatal Injuries and Wrongful Death (1965), 18 Vand. L. Rev. 847 .) The language in section 2 of our present act, which provides for the recovery of damages and the distribution of the same, is not appropriate to encompass damages for the wrongful death of a fetus and apparently, judging from the language used, was not intended to do so.

My position that an unborn fetus is not a person finds support in the recent Supreme Court decisions concerning abortion (January 22, 1973) (Roe v. Wade, 410 U.S. 113 , 35 L. Ed. 2d 147 , 93 S. Ct. 705 ; Doe v. Bolton, 410 U.S. 179 , 35 L. Ed. 2d 201 , 93 S. Ct. 739 ). In Roe v. Wade, Mr. Justice Blackmun considered the question of whether a fetus is a “person” within the meaning of the fourteenth amendment of the Federal constitution. The opinion points out each instance in the Federal constitution where the word “person” is used and concludes:

“But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person, ’ as used in the Fourteenth Amendment, does not include the unborn.” (Footnotes omitted.) 410 U.S. 113, 157-158 , 35 L. Ed. 2d 147, 179-180 , 93 S. Ct. 705, 729 .

Our statute providing for recovery for death of a person by wrongful act was adopted only 13 years before the fourteenth amendment was proposed to the State legislatures by Congress. Nothing in the language in our statute indicates that the word “person” as used therein should include the unborn while in an enactment of Congress of the same period the word “person” through its common usage at that time has been interpreted to exclude the unborn.

Roe v. Wade further states:

“In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. *** In short, the unborn have never been recognized in the law as persons in the whole sense.” 410 U.S. 113, 161-162 , 35 L. Ed. 2d 147, 182 , 93 S. Ct. 705, 731 .

The Supreme Court’s holding concerning the State’s role in controlling abortion further supports the conclusion that if a cause of action is to be created for the wrongful death of an unborn fetus it should be created by the legislature. In the two cases the Supreme Court divided the period of pregnancy into three stages for purposes of prescribing guidelines for State legislation with regard to abortion. During the first stage the State may not interfere with the abortion decision. For the second stage the State, in promoting the interest of the health of the mother may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. In the stage subsequent to viability, the State may, if it chooses, regulate and even proscribe abortion except when it is necessary for the preservation of the life or health of the mother. 410 U.S. 113, 164-165 , 35 L. Ed. 2d 147, 183 , 93 S. Ct. 705, 731-732 .

What are the rights of a father of a viable fetus who does not consent to an abortion? May a cause of action for the wrongful death of the fetus be maintained for his benefit? With the leeway conferred upon the States within which they may authorize or proscribe abortion by statute, it would appear that, to avoid apparent or actual inconsistencies in the law, any right of action created for the wrongful death of an unborn child should be correlated with the provisions of the statute pertaining to abortions. This should properly be done by the legislature.

UNDERWOOD, C.J., and KLUCZYNSKI, J., join in this dissent.