Appeal from the Circuit Court of Cook County; the Hon. HAROLD
G. WARD, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 11, 1963.
The plaintiff is the infant son of the defendant. He seeks damages from his father because he is an illegitimate child. He appeals from an order dismissing his suit and striking his complaint for its failure to state a cause of action.
Although the defendant moved to dismiss the complaint in the trial court, he did not contest this appeal. During the oral argument in this court Mr. Hugh M. Matchett, the plaintiff's attorney, said he thought the defendant's viewpoint should be represented. He suggested that Professor Max Rheinstein, an internationally recognized authority in family law, be asked to participate as amicus curiae. Dr. Rheinstein accepted our appointment. We are indebted to Mr. Matchett for his generous suggestion and to Dr. Rheinstein for his gracious acceptance.
The factual averments of the complaint, which were admitted by the motion to strike, are: the defendant is the plaintiff's father; the defendant induced the plaintiff's mother to have sexual relations by promising to marry her; this promise was not kept and could not be kept because, unbeknown to the mother, the defendant was already married. The complaint charges that the promise was fraudulent, that the acts of the defendant were willful and that the defendant injured the plaintiff in his person, property and reputation by causing him to be born an adulterine bastard. The plaintiff seeks damages for the deprivation of his right to be a legitimate child, to have a normal home, to have a legal father, to inherit from his father, to inherit from his paternal ancestors and for being stigmatized as a bastard.
In describing this complaint, Dr. Rheinstein stated:
"Such a claim is novel. There is no statutory or judicial recognition of such a claim in Illinois or elsewhere in the United States. There is no adverse decision either. In fact, no such claim seems ever to have been raised in any court in Illinois, of any other Common Law jurisdiction, or in any Civil Law country either."
The plaintiff raises constitutional questions and presents two theories of recovery, one in tort and the other in contract. The constitutional questions are framed under the due process and equal protection clauses of the Constitution of the United States (XIV Amendment, section 1), the due process clause of the Constitution of Illinois (Article II, section 2) and under Article II, section 19 of the State Constitution ("Every person ought to find a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or reputation"). These constitutional questions cannot be considered. The plaintiff appealed directly to the Supreme Court which refused to take the case and transferred it to this court. If a case in which constitutional issues are advanced is transferred to the Appellate Court, it must be concluded that the Supreme Court has determined no such issues are involved or that they are not material to the disposition of the appeal. City of Chicago v. Campbell, 27 Ill. App.2d 456, 170 N.E.2d 19.
The contract theory is that the plaintiff should be regarded as a third-party beneficiary of the agreement made by his father and mother to marry each other. This contention, even if it were tenable, is not available to the plaintiff because his complaint sounds in tort. Therefore, the only theory of recovery to be considered on this appeal is whether the complaint states a cause of action in tort.
The first of the many interesting questions prompted by the unique averments of the complaint is this: was the act of the defendant a legal wrong, a tortious act? From the admitted facts we can draw the conclusion that the defendant's act was willful and, perhaps, criminal. It was willful in that the defendant was completely indifferent to the foreseeable consequences of his act. He pursued a course of conduct which showed a conscious disregard for the rights of others. He knew he could not marry the woman and he knew that if a child were born as a result of his act he could not legitimatize that child. The act may have been criminal in that the defendant, a married man, and the mother, an unmarried woman, were living together in the mother's apartment. If this cohabitation as husband and wife was openly done, it was a criminal offense: adultery on the part of the defendant, fornication on the part of the mother. Ill. Rev Stats (1957), c 38, § 46; People v. Greene, 276 Ill. 346, 114 NE 518. The criminal aspect of the act accentuates its gravity. It was not only a moral wrong but was, under the aggravated circumstances of this case, tortious in its nature.
We need not be concerned whether a tort was committed upon the mother by the defendant's false promise of marriage which induced her to have intercourse with him. Our problem is whether a tort was committed upon the child. Thus, the second question to confront us is, can a tort be inflicted upon a being simultaneously with its conception?
The law of torts has been hesitant in recognizing what medical science has long known, that life begins at the moment of conception, and what theology has longer taught, that from the moment of conception every human being has the rights of a human person. Blackstone wrote that in the contemplation of the common law a child's life began when it "is able to stir in the mother's womb." Cooley, Blackstone's Commentaries, c 1, p 130 (1899). Although other branches of the law, such as property and inheritance, recognized the legal existence of a child from the moment of conception, in tort a child was not regarded as a being separate from its mother until it was born. In the last few years a change has taken place in the law pertaining to prenatal physical injuries. From 1884 to 1946 it was universally held that under the common law there could be no recovery for such injuries. Dietrich v. Inhabitants of Northhampton, 138 Mass. 14 (1884); Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900). There were occasional dissenting opinions; judges were troubled by the unfairness of holding that a child en ventre sa mere was a human being for inheritance and property rights and not one if it suffered tortious physical injury. It was not until 1946 that a major breakthrough was made under the common law (Bonbrest v. Kotz, 65 F. Supp. 138) although one that received less attention had occurred in 1924 (Kine v. Zuckerman, 4 Pa. D. & C. 227) . Gradually thereafter various jurisdictions permitted actions for prenatal injuries if a child was viable at the time of injury and if it survived birth. Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953). A few states adhered to the Dietrich precedent, but generally the viability of the child at the time of injury became the criterion upon which recovery rested. However, the exact time when viability occurs is uncertain. No medical authority can say with accuracy just at what moment a child can live when separated from its mother. Babies have survived in incubators ever further removed from the time of normal birth. The law has slowly come to realize these uncertainties and the viability test is being abandoned. Now complaints are being sustained where the pleaded facts show that the child was not, or might not have been, viable when the injury occurred. Daley v. Meier, 33 Ill. App.2d 218, 178 N.E.2d 691 (1961), mother approximately one month pregnant; Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Sinkler v. Kneale, 401 Pa 267, 164 A.2d 93 (1960), first month of pregnancy; Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), six weeks after conception; Kelly v. Gregory, 282 App. Div. 542, 125 NYS2d 696 (1953), third month of pregnancy; Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951).
The case at bar seems to be the natural result of the present course of the law permitting actions for physical injury ever closer to the moment of conception. In point of time it goes just a little further. The significance of this course to us is this: if recovery is to be permitted an infant injured one month after conception, why not if injured one week after, one minute after, or at the moment of conception? It is inevitable that the date will be further retrogressed. How can the law distinguish the day to day development of life? If there is human life, proved by subsequent birth, then that human life has the same rights at the time of conception as it has at any time thereafter. There cannot be absolutes in the minute to minute progress of life from sperm and ovum to cell, to embryo to foetus, to child.
But what if the wrongful conduct takes place before conception? Can the defendant be held accountable if his act was completed before the plaintiff was conceived? Yes, for it is possible to incur, as Justice Holmes phrased it in the Dietrich case, "a conditional prospective liability in tort to one not yet in being." It makes no difference how much time elapses between a wrongful act and a resulting injury if there is a causal relation between them. Let us take the hypothetical case of an infant injured after birth by a defective household device. Suppose, before the child was conceived, a manufacturer negligently made a space heater and sold it to a retailer who retained it in his store. After the infant's birth his mother purchased the heater and used it in the room of her child who was burned because of its faulty preparation. Would there not be a right of action against the manufacturer despite the fact the negligence took place before the child was conceived? In the hypothetical case the child was injured after birth. Lest this fact be given undue importance, let us proceed a step further. Suppose a manufacturer prepared and sold a drug for human consumption which had not been adequately tested; that, while it was beneficial for the purpose intended, it proved to be harmful if taken by women in the very early stage of pregnancy in that it arrested the development of infants' bodies, causing them to be born with abnormal arms or legs. Would not a child so born have a right of action in tort? In the second case the child was injured soon after conception. So let us go still further and take a third suppositive case, where the wrongful act also takes place before conception but the injury attaches at the moment of conception. Physicists and geneticists declare that thermonuclear radiation can so affect the reproductive cells of future parents that their offspring may be born with physical and mental defects. Schubert and Lapp, Radiation What It Is ...