¶1dissenting.
¶2I dissent. The definite trend, and the overwhelming weight of authority (by a margin of more than 2 to 1
¶3This Court has recognized since 1960 that a child who is born alive may recover for prenatal injuries (even though it was a nonviable embryo at the time it was injured). Sinkler v. Kneale, 401 Pa. 267,164 A.2d 93 (1960). In 1964 the Court of Appeals for the Third Circuit was faced with the task of determining whether this Court would hold that a cause of action accrues under the wrongful death and survival statutes for the wrongful death of a stillborn fetus. Since the right to maintain such an action generally depends upon whether a stillborn infant, had it survived, could have brought suit to recover damages for its prenatal injuries, 15 A.L.R.3d 992, 994 (1967), and since Sinkler v. Kneale, supra,affords a surviving infant a cause of action for prenatal injuries, the Court of Appeals concluded that Pennsylvania would align itself with the majority view. Gullborg v. Rizzo, 331 F.2d 557 (3d Cir. 1964).
¶4The Third Circuit’s prediction was proven faulty in Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Appellants’ brief, at 12-13, correctly identifies what I agree to be the major errors in Carrollwhich require its overruling.
¶5Carrolljustified its decision to deny recovery for stillbirths resulting from prenatal injuries in part by stating that problems in proof of causation and pecuniary loss were heightened where a stillborn is involved, but problems of proof should in no way affect the right to bring a death action.
(Such arguments) reincarnate the fallacious identity between evidentiary problems and a right of action which was made in the early cases on prenatal injury. The *495problem of valuing the loss in pecuniary terms is solely one of evidence. A cause of action should be recognized; a stillborn’s representatives should have the opportunity to present their case. If the damages claimed are overly speculative, the suit may be dismissed. DelTufo, Recovery for Prenatal Torts; Actions for Wrongful Death, 15 Rutgers L.Rev. 61, 78 (1960).
¶6Thus, appellee’s lament over the problems of causation is insufficient to bar the instant causes of action at the outset.
¶7The CarrollCourt also based its decision on the conclusion that the legislature never intended to provide for recovery by the estate of a stillborn child, because the Wrongful Death Act directs that the distribution of any sum recovered be in accordance with the schedule of distribution provided for the estate of an intestate. Since the intestate laws do not allow a child who is born dead to take property from an intestate, the Court reasoned, neither may a stillborn child have an estate which may be distributed according to the intestacy rules. The Court then concluded that since the legislature did not provide for stillborn children in the intestate laws, it must have meant to exclude them under the Wrongful Death Act also.
¶8However, just as DelTufo, supra, sees a “fallacious identity” being made between evidentiary problems and the right of action, a similar identity has been made in Carrollbetween the right to bring the action and the mechanism provided to distribute the proceeds of the action. As it is noted in the excellent discussion of this facet of the Carrolldecision in 38 Temp.L.Q. 470, 475 (1965):
The Court took provisions of a (wrongful death) statute which, in effect, said that a recovery, once awarded, shall be distributed as in the case of intestacy, and used these distribution provisions to decide whether or not the award shall be made at all. By the very terms and scheme of the statute, the provisions for distribution never come into play until after the substantive issue of liability has been decided, (emphasis in original).
¶9*496The majority states that the requirement of live birth is “in some sense an arbitrary requirement, but the line must be drawn somewhere . .. . ” (Slip opinion at 6). I disagree. The alternative to drawing an arbitrary line anywhere is to recognize the cause of action generally while, of course, maintaining the not-insubstantial burden of proving causation in each case. Modern medical science has advanced to such a state that many of the heretofore existent causation gaps can now be closed. That such gaps might remain open in some cases should preclude recovery in those eases for failure to meet the burden of proof of causation, but should not invalidate those causes of action for which expert medical testimony can bridge the gap. Thus, rather than drawing a line at the birth of a child, viability or some arbitrary period of gestation, I would simply allow the action to proceed to trial and let the orderly production of evidence by the adversaries draw its own line.
¶10For the foregoing reasons, I would overrule Carroll v. Skloff, supra,and Marko v. Philadelphia Trans. Co., 420 Pa. 124, 216 A.2d 502 (1966) and would, accordingly, reverse the order of the Superior Court and remand to the Court of Common Pleas for proceedings consistent with this opinion.
¶11. At last count, 27 jurisdictions have expressly ruled in favor of permitting recovery for the death of a stillborn child, at least where the fetus was viable, either in cases of first impression or in decisions reversing prior law. Eich v. Town of Gulf Shores, 300 So.2d 354 (Ala. 1974); Hatala v. Markiewicz, 26 Conn.Sup. 358, 224 A.2d 406*493(1966); Worgan v. Greggo and Ferrara, Inc., 128 A.2d 557 (Del.Super. 1956); Simmons v. Howard University, 323 F.Supp. 529 (D.D.C. 1971); Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1972); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Evans v. Olson, 550 P.2d 924 (Okl.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Kwaterski v. State Farm Mutual Auto Insurance Company, 34 Wis.2d 14, 148 N.W.2d 107 (1967); Wascom v. American Indemnity Corporation, 383 So.2d 1037 (La.App.1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 425 A.2d 92 (Vt.1980).
¶12By comparison, only 12 jurisdictions, other than Pennsylvania, adhere to the rule denying recovery for stillborn infants: Kilmer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706 (1975); Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178 (1954); Stern v. Miller, 348 So.2d 303 (Fla. 1977); McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971); State v. Sanders, 538 S.W.2d 336 (Mo. 1976); Drabbels v. Skelly Oil Company, 155 Neb. 17, 50 N.W.2d 229 (1951); Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Hogan v. McDaniel, 319 S.W.2d 221 (Tenn.1958); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Lawrence v. Craven Tire Company, 210 Va. 138, 169 S.E.2d 440 (1969). For a further analysis of the cases in various jurisdictions, see Annotation at 84 ALR 3d 411 (1978).
¶13Moreover, the commentators on the subject of death actions for unborn children are virtually unanimous in favor of recovery for viable stillborn infants, and a majority would go further than the courts and allow recovery even for nonviable infants. See, e. g., S. Speiser, Recovery for Wrongful Death, Section 4:38, page 564 (2d ed. 1975) ; Comment, Mone vs. Greyhound Lines, Inc.: A Limited Advance in the Law of Prenatal Wrongful Death, 11 N.Eng.L.Rev. 669 (1976); 7 Tex.Tech L.Rev. 821 (1976); 21 Vill.L.Rev. 994 (1975-1976) ; Comment, Wrongful Death and the Unborn, 13 J.Fam. Law 99 *494(1973-74); 38 Temp.L.Q. 470 (1965); DelTufo, Recovery for Prenatal Torts: Actions for Wrongful Death, 15 Rutgers L.Rev. 61 (1960).
¶14Viability is, in any event, not an issue in the instant case, inasmuch as it has been alleged in the Complaint that the fetus was eight months old. Therefore, the instant case would fall into the category of cases involving stillborn, viable infants.