Breitel, J.

This is an action for declaratory judgment by a guardian ad litem for unborn children to declare the 1970 abortion “liberalization” statute unconstitutional (L. 1970, ch. 127). Plaintiff obtained a temporary injunction at Special Term to restrain defendants from “ performing any abortional acts ” except where the mother’s life was endangered. The temporary injunction was stayed pending appeal, and on appeal the Appellate Division, by a divided court, reversed, vacated the injunction, and remanded the case to Special Term to enter a declaratory judgment sustaining the validity of the statute. It in effect granted summary judgment. No party questions the procedure.

The issue, a novel one in the courts of law, is whether children in embryo are and must be recognized as legal persons or entities entitled under the State and Federal Constitutions to a right to life. It is not effectively contradicted, if it is contradicted at all, that modern biological disciplines accept that upon conception a fetus has an independent genetic “ package ” with potential to become a full-fledged human being and that it has an autonomy^ of development and character although it is for the period of gestation dependent upon the mother. It is human, if only because it may not be characterized as not human, and it is unquestionably alive.

*200The issue has heen debated below and in this court on two levels. The first level turns on the legal history of the concept of persons in the law and of the act of abortion. That history is spelled out beyond the need for repetition or elaboration in the majority opinion at the Appellate Division. The answer is clear enough. Unborn, and even unconceived, children have been recognized as acquiring rights or interests in narrow legal categories involving the inheritance or devolution of property (e.g., Endresz v. Friedberg, 24 N Y 2d 478, 483). Fetuses, if they are born alive, have been entitled in modern times to recover in tort for injuries sustained through the host mother (Woods v. Lancet, 303 N. Y. 349, 352-356; Kelly v. Gregory, 282 App. Div. 542, 543). Indeed, unconceived children have been represented in proceedings affecting property by guardians ad litem (SCPA 315; Ann., Trust — Invasion of Corpus, 49 ALR 2d 1095).

But unborn children have never been recognized as persons in the law in the whole sense. In ancient days it was even said that they were not in rerum natura. As for abortion, when the act has been made criminal or otherwise unlawful in the law, the direct design was evidently to protect the mother from injury and dangerous practices (Means, The Phoenix of Abortional Freedom, 17 New York Law Forum 335). It has been argued, of course, that anti-abortion laws were also designed to protect the fetus; but the argument is hard to sustain so long as there have been provisions that limited unlawful abortions to pregnancies after ‘' quickening ’ ’ and abortions have been justified to protect the mother even though it meant destruction of the fetus.

In any event, the historical analysis is interesting, not determinative, and only of limited influence. Both those who attack the present statute and those who defend it must and dó rély ultimately on modern science and particularly modern asepsis and techniques to mount their attacks or defend their positions.

The second level of debate is the real one, and that turns on whether a human entity, conceived but not yet born, is and must be recognized as a person in the law. If so, it is argued that the person is immediately subsumed under the class entitled to constitutional protection, it being assumed that an entity if treated anywhere in the law as a person must be so treated *201for all purposes. Issue is never really joined at this level because the antagonists are talking about different things although they use the same terminology. Conceptually, whether in philosophy or in religious doctrine, and the doctrine is not confined to any one religion, a conceived child may be regarded as a person, albeit at a fetal stage. It is not true, however, that the legal order necessarily corresponds to the natural order (see, e.g., Bertholf v. O’Reilly, 74 N. Y. 509, 514-515). That it should or ought is a fair argument, but the argument does not make its conclusion the law. It does not make it the law anymore than that the law by recognizing a corporation or a partnership as persons, or according property rights to unconceived children, make these “ natural ” nonentities facts in the natural order.

When the proposition is reduced to this simple form, the difficulty of the problem is lessened. What is a legal person is for the law, including, of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person (e.g., Kelsen, General Theory of Law and State, pp. 93-109; Paton, Jurisprudence [3d ed.], pp. 349-356, esp. pp. 353-354 as to natural persons and unborn children; Friedmann, Legal Theory [5th ed.], pp. 521-523; Gray, The Nature and Sources of the Law [2d ed.], ch. II). The process is, indeed, circular, because it is definitional. Whether the law should accord legal personality is a policy question which in most instances devolves on the Legislature, subject again of course' to the Constitution as it'has been “ legally ” rendered. That the legislative action may be wise or unwise, even unjust and violative of principles beyond the law, does not change the legal issue or how it is to be resolved. The point is that it is a policy determination whether legal personality should attach and not a question of biological or “ natural ” correspondence.

The principles were aptly illustrated by Gray:

‘ ‘ Included in human beings, normal and abnormal, as legal persons, are all living beings having a human form. But they must be living beings; corpses have no legal rights. Has a child begotten, but not born, rights? There is no difficulty in giving them to it. A child, fi e minutes before it is born, has as much real will as á child five minutes after it is born; that is, none at all. It is just as easy to attribute the will of a guard*202ian, tutor, or curator to the one as to the other. Whether this attribution should be allowed, or whether the embryo should be denied the exercise of legal rights, is a matter which each legal system must settle for itself. In neither the Roman nap the Common Law can. a child in the womb exercise any legal rights.

“ But putting an end to the life of an unborn child is generally in this country an offence by statute against the State; and in our Law a child once born is considered for many purposes as having been alive from the tipie it was begotten.” (op. cit., supra, at pp. 38-39).

Paton, cited above, is worth repeating in some detail:

“ In ancient systems not all human beings were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some systems as being ‘ civilly dead ’ and his property is distributed just as if death had in fact taken place. In modern times it is normal to grant legal personality to all living within the territory of the State.

‘ ‘ Most systems lay down the rule that, in cases where legal personality is granted to human 'beings, personality begins at birth and ends with death.

‘ ‘ In the case of birth, most systems require complete extrusion from the mother’s body — the child in the womb is not a legal personality and can have no rights. For some purposes, however, the maxim nasciturus pro lam nato habetur takes effect. In the civil law the fiction was invented that in all matters affecting its interests the unborn child in útero should be regarded as already born, but English law applies this fiction only for the purpose of enabling the child if it is born to take a benefit. It is thought reasonable that a child who has lost his father should not be further penalized by losing any interest which he would have secured had he been alive at his father’s death.

“ In English law it is still doubtful whether an infant born alive can recover for injuries inflicted before birth. To prove in fact a causal link between the negligence and the particular injury may well be difficult, but, if this hurdle can be surmounted, there seems to be no conclusive reason why recovery should be denied. The law relating to child killing is too intri*203cote for survey in short terms. A child must be completely born alive before the rules of murder will protect it, for murder is the killing of a reasonable person in being. If, however, the prisoner intentionally inflicts serious injury on a child in the womb, and the child is bom alive and then dies from the injuries, this is murder. But these rules, even when coupled with the prohibition of abortion, left too many opportunities for child destruction. For example, if a child was killed during the process of birth it was not murder at common law, since the whole body of the child must be extruded before it becomes a person.” (op. cit., supra, at pp. 353-354).

Moreover, plaintiff of necessity occupies a less than completely consistent position. He agrees that abortion is justified to save the mother’s life because it is one life for another. But that is not satisfactory. Necessity may justify in the law every kind of harm to save one’s life, except to take the life of an innocent. Before the law one life is as good as another, saint or sinner, genius or imbecile, child or adult. Besides, if the contrary were true, should not the one to lose his life be entitled to notice and hearing through a guardian ad litem, as would be done with any child’s property rights, born or unborn?

There are, then, real issues in this litigation, but they are not legal or justiciable. They are issues outside the law unless the Legislature should provide otherwise. The Constitution does not confer ór require legal personality for the unborn; the Legislature may, or it may do something less, as it does in limited abortion statutes, and provide some protection far short of conferring legal personality.

Accordingly, the order of the Appellate Division should be affirmed without costs.

Jasen, J.

(concurring). I concur in Judge Breitel’s opinion, but merely add the following to underscore my position in light of the dissenting opinions.

Plaintiff has been appointed guardian ad litem for the infant “ Roe ” and all similarly situated members of a class of unborn infants of less than 24 weeks’ gestation scheduled for abortion in public hospitals under the operation and control of the defendant. On this appeal, it is his contention that chapter 127 of the Laws of 1970, amending section, 125.05 (subd. 3) of the *204Penal Law, violates the constitutional rights of his wards and that the child en ventre sa mere is a legal person protected by the Fifth and Fourteenth Amendments of the Federal Constitution and, as such, cannot be deprived of life without due process or denied the equal protection of New York’s laws. Respondents, on the other hand, urge that a fetus of less than 24 weeks’ gestation is not a legal person within thq constitutional protections.

To those, who contend, as- plaintiff does, that biological and legal “ life ” arise in their full.“ human ” sense at conception, the issue is settled. (See, e.g., Steinberg v. Brown, 321 F. Supp. 741 [N. D., Ohio]; Drinan, The Inviolability of the Right To Be Born, 17 Western Res. L. Rev. 465; Brown, Recent Statutes and the Crime of Abortion, 16 Loyola L. Rev. 275; Louisell, Abortion and Due Process, 16 U. C. L. A. L. Rev. 233; Noonan, The Constitutionality of the Regulation of Abortion) 21 Hastings L. J. 51.) On the other hand, to those whp regard conception as the creation of life of less-than-human status, the " controversy has merely begun.” (Sikora, Abortion: An Environmental Convenience or a Constitutional Right?, 1 Environmental Affairs [Boston College Law School Environmental Law Center] 469, 493 et seq.; People v. Belous, 71 Cal 2d 954, cert. den. 397 U. S. 915; cf. Doe v. Bolton, 319 F. Supp. 1048 [N. D., Ga.], jurisdiction postponed to hearing on the merits 402 U. S. 941; Roe v. Wade, 314 F. Supp. 1217 [N. D., Tex.], jurisdiction postponed to hearing on the merits 402 IT, S. 941; see Giannella, The Difficult Quest for a Truly Humane Abortion Law, 13 Vill. L. Rev. 257.) Thus, we are asked to choose, as a matter of law, between extreme positions and competing values that concededly may be metalegal, mindful of Justice Holmes’ admonition in his now vindicated dissent1 in Lochner v. New York (198 U. S. 45, at p. 76) that the Constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

*205As Judge Bbeitel’s opinion recognizes, the formidable task of resolving this issue is not for the courts. Bather, the extent to which fetal life should be protected “ is a value judgment not committed to the discretion of judges, but reposing instead in the representative branch of government. ’ ’ (Corkey v. Edwards, 322 F. Supp. 1248, 1253-1254; see, also, American Federation of Labor v. American Sash & Door Co., 335 U. S. 538, 557 [Frankfurter, J.]; cf. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola [L. A.] L. Rev. 1.) Since the Constitution does not prohibit the determination made by the Legislature and there is a reasonable basis for it, the validity of the statute should be sustained. I would merely note that law is not unprincipled because it does not embrace all principles, and it would be a spiritless universe in which the law embraced all principles. This has been the teaching of western civilization and its great religions.

Burke, J.

(dissenting). As I stated in Robin v. Incorporated Vil. of Hempstead (30 N Y 2d 347, 352) chapter 127 of the Laws of 1970 is not a valid exercise of legislative power. The majority opinion states the issue as: “ whether the law should accord legal personality is a policy question* which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been ‘ legally ’ rendered ”.

This argument was not only made by Nazi lawyers and Judges at Nuremberg, but also is advanced today by the Soviets in Eastern Europe. It was and is rejected by most western world lawyers and Judges because it conflicts with natural justice and is, in essence, irrational. To equate the judicial deference to the wiseness of a Legislature in a local zoning case with the case of the destruction of a child in embryo which is conceded to be “ human ’ ’ and ‘ is unquestionably alive ” is an acceptance of the thesis that the “ State is supreme ”, and that “ live human beings ” have no inalienable rights in this country. The most basic of these rights is the right to live, especially in the ease of the ‘ unwanted ’ ’ who are defenseless. The late Chief *206Judge Lehman once wrote of these rights: “ The Constitution is misread by those who say that these rights are created by the Constitution. The men who wrote the Constitution did not doubt that these rights existed before the nation was created and are dedicated by God’s word. By the Constitution, these rights were placed beyond the power of Government to destroy.” In other words, what the Chief Judge was saying was that the American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Bubke and Henby de Bbacton and even beyond the Magna Carta to Judean Law. Human beings are not merely creatures of the State, and by reason of that fact, our laws shpuld protect the unborn from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise. Moreover, if there is a confiscation of property through a zoning law, it is “ constitutionally ” invalid. Recently, the United States Supreme Court held that the taking of a life of a murderer by a State was constitutionally invalid, and in the words of one Justice, was found to be “ immoral and therefore unconstitutional ” (Furman v. Georgia, 408 U. S. 238, 364-366 [Marshall, J., concurring]).

The Attorney-General argues that the legislative determination in choosing between the competing values involved herein is a value judgment committed to the legislative process of government, not to the discretion of the judiciary. Furthermore, it is argued that there is a legitimate State interest in a woman’s right of privacy and in the undesirable effect of unwanted children upon society. (See Lexogram, Vol. 4, No. 10.) Upon scrutiny, these arguments are not persuasive, and the legislation cannot stand for two reasons — it is irrational and unconstitutional.

The irrationality of the legislation in question has several aspects. In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, the^e *207is no compelling State interest to support the abortion legislation. Additionally, two other frequently raised arguments by proponents of abortion cannot withstand scrutiny. Thus, the plaint regarding women dying from botched abortions under the old law is easily answered. Examples of due justice for foetuses are more merciful than the unbounded exercise of pity for those few unfortunate pregnant women who fall into the hands of the few inexpert doctors. Thousands of illegal abortions were performed in Few York City hospitals under the old law without fatalities but with serious side effects. To overcome this self-created problem by destroying hundreds of thousands of foetuses by State law is uncivilized. At best, a few human beings are only possibly wholly preserved from a fate set in motion by themselves at the sacrifice of hundreds of thousands and soon millions of other human beings. For can the old abortion law be said to be an interference with a physician’s right to practice his profession. The old abortion law sanctioned therapeutic abortion when medically indicated, thus enabling the physician to save the life of the mother in extreme circumstances.

The more telling fact than the present legislation’s irrationality is its unconstitutionality. The unconstitutionality stems from its inherent conflict with the Declaration of Independence, the basic instrument which gave birth to our democracy. The Declaration has the force of law and the constitutions of the United States and of the various States must harmonize with its tenets. The Declaration when it proclaimed “ We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ” restated the natural law. It was intended to serve as a perpetual reminder that rulers, legislators and Judges were without power to deprive human beings of their rights.

Unless there had been a Thomas Jefferson who was educated by a philosophy professor to know the primacy of the natural law — there would be no United States of America. For, if the Declaration had been written by a pragmatist for expedient reasons we never could have enlisted the sympathies and agreement of such a large part of the then world, including members of the British Parliament in our righteous cause. They would *208know the pragmatic reasoning would be nothing more than pettifoggery, and had no basis in law.

We began our legal life as a Nation and a State with the guarantee that these were inalienable rights that come not from the State but from an external source of. authority superior to the State which authority regulated our inalienable liberties and with which our laws and Constitutions must now conform. That authority alone establishes the norms which test- the validity of State legislation. It also tests the Constitutions and the United Nations Convention against genocide which forbids any Nation or State to classify any group of living human beings as fit subjects for annihilation. In sum, there is the law which forbids such expediency. It is the inalienable right to life in the nature of the child embryo who is “ a human ” and is “ a living being Inalienable means that it is incapable of being surrendered (Webster’s Third New International Dictionary). Thus, the butchering of a fo.etus under the present law is inherently wrong, as it is an illegal interference with the life of a human being of nature.

The report of the Governor’s commission explanation that it was not dealing with * ‘ morality ’ ’ but only law, overlooked the fact that it turned its back on the law — the natural law reiterated in the Declaration of Independence. The reasons given for the enactment of the present abortion law are irrational from a medical, scientific and factually objective analysis. There is no need for abortion except in very limited medical circumstances.

Chapter 127.of the Laws of 1970, authorizing abortion “on demand ” is a resort to expediency which is recognized everywhere as the death of principle. The rationale of the majority opinion admits that customs do change and the Legislature could, if it should in the future be the attitude of the Legislature, do away with old folks and eliminate the great expense the aged are to the taxpayers. This, of course, would parallel the Hitler laws which decreed the death of all the inmates of mental hospitals and also decreed that for many purposes non-Aryans were nonpersons.

Chief Judge Lehman’s understanding of inalienable rights is the only understanding that makes any sense out of the *209Declaration of Independence, the Magna Carta, the Bill of Rights and the United Nations Convention against genocide.

According to the majority opinion, valid law is a merger of legislative and executive emotions, whims and hunches — announced today and perhaps changed tomorrow. One’s rights are never permanent as the existence of the natural law is denied. The majority suggests that all law is man made. Such a philosophy of law we know would not attract persons educated in philosophy. Others, however, are attracted by pragmatism. This is just as dangerous as expediency because certain individuals think: we are realistic and self-sufficient — this legislation will control population growth and assist the taxpayers. This pragmatism, of course, is masked by a contrived theory exemplified in Abele v. Markle (342 F. Supp. 800) of giving the right of privacy of the woman an absolute paramountcy over the inalienable right of the foetus to life. On that false and unsupported premise (as I shall point out later) it then cites Griswold v. Connecticut (381 U. S. 479). That citation is inapposite. Here there are three people with different interests involved. The man, the woman and the foetus. The foetus has the superior ‘ ‘ right to life ’ ’ rather than the particular female’s or male’s concern to avoid responsibility. The proponents of abortion know that there are men who desire offspring for the joy as well as the responsibility they bring. The protection of the foetal life has been the concern of law givers even before the judicial Law of Moses, the great law giver (the Ten Commandments) down through the ages. Even in barbaric ages this was the law (see de Bracton, Sir Matthew Hale, Fleta, Sir Edward Coke, Sergeant Hawkins, Sir William Blackstone).

Under New York State law the foetus, if it is born, is entitled to posthumously share in a deceased husband’s intestate estate. This legislation gives the “ right ” to the wife to unilaterally, through abortion, appropriate the husband’s entire estate by preventing offspring and depriving the legally wedded husband of transmission of his blood line, name and properties to * ‘ flesh of his flesh ”: another inalienable right.

The proponents of abortion take refuge in concocted distinctions as to what living human beings are persons and what living human beings are not persons — to justify the massacre *210of the innocents, over 400,000 in New York State this year. They belittle Ckitty, Coke and twist the statements of Hake to try to persuade those who, as did the author of the Declaration of Independence, recognize that the natural law granted inalienable rights to human living beings. They demand that the natural law expressed in the Declaration of Independence on which the United States is founded, should be ignored for expedient reasons. The pragmatists have a remarkable capacity for bearing the suffering of others with equanimity so long as the suffering is not imposed on them. They are just as callous toward their fellow human beings (they all started as foetuses) as the parents who slaughtered their children in the earlier centuries. In that age parents engaged in wholesale slaughter of children for the same expedient reasons dictating this legislation, which is forbidden by the natural law (see P. Pringle, Hue and Cry, William Morrow and Company, Great Britain).

In view of the myriad methods of contraception now approved and fully utilized by females of all ages, the pronouncement in Abele v. Markle (342 F. Supp. 800, supra) that women after conception have the unquestioned right to make the sole decision to abort is contrary to the State’s responsibility to preserve and protect life. (Furman v. Georgia, 408 U. S. 238, 364 — 366, supra.) Thé contraception methods available today if used are more than sufficient to control population growth. Witness the fact that we have already reached zero population growth and possibly gone below it. The complete disrespect for the foetus’ right to life is in keeping with the cruelties which antedated the age of the lawmakers of Judaism, and certainly is a return to the barbarism of the English people of the early centuries (see P. Pringle, Hue and Cry, supra).

There is no medical or scientific doubt that foetuses are a group of human beings not a part of his or her mother. Every respected doctor, specializing in this field, treats the unborn child as a second patient different and individually distinct from the mother. Unless we intend to indorse the totalitarian philosophy already practiced of destroying the elderly, the insane, the newly born defective child or other groups of “ lesser quality ” as defined by the “ state ”, scrap the Declaration of Independence, distort the meaning of the Fifth and *211Fourteenth Amendments, we should find-this legislation constitutionally invalid.

The Appellate Division arrived at the obvious contradiction that even though the foetus is a human being with “ a separate life from the moment of conception ”, it need not be considered a person under the Fifth Amendment. Again the Appellate Division adopted the theory that the State is supreme and free to degrade the inalienable rights of human beings which were not given to them by the State and cannot be diminished nor taken away by the State. The Appellate Division and the majority agree that the “ state ”, as in Nazi Germany, could decide what human beings are persons or nonpersons. Human beings are not created by any woman unilaterally — only with the aid of viable semen. Men and women can have intercourse thousands of times and fail to create a foetus. The woman and the man, not only the State, are obliged to recognize the inalienable rights that issue out of the uncontroversial factors flowing out of one’s humanity. There is the sanctity of human life. To pass a law authorizing foetuses’ destruction is akin to establishing a State religion which conflicts with the rights given to those conceived in our democracy. To state that the present law does not violate the freedom of conscience of those who believe abortion to be a crime while the public revenues and public institutions are used is to resurrect the disgraceful argument that the citizens of Nazi Germany knowing of the death camps had an individual freedom of conscience to shrug off the atrocities of Dachau, Auschwitz and the other death camps. The question answers itself once we look at that society under Hitler.

The deeper disease in this legislation is the widening gap between the American self-image of a country that values human Ufé and the reality of a growing preoccupation of the hedonists with a competitive drive for La Dolce Vita. Because some women of means have practiced abortion for years without regard for the then existing laws or the consequences apart from death is no reason to legalize it and conduct a campaign among the poor to convince them that philosophically and biologically they can consider an unborn child as one not a distinct human being with an individual right to life.

*212The Presidential Commission on Abortion fails to distinguish between an unwanted and unplanned, birth and unwanted children. Adoptive agencies all over the United States have long waiting lists of prospective parents eager for a baby. But there are no babies to adopt. Every baby in the United States being aborted because of an alleged belief that the infant is unwanted is being denied life on the basis of an untruth. Our society has for ages allowed the woman to discontinue a responsibility for the developing human organism when that organism has reached a stage of development at which this responsibility can be transferred to another. The argument in Abele v. Markle (342 F. Supp. 800, supra) completely evades this option and relies entirely on the concept that a woman’s body is “ private property ” to be used as she wishes without interference from the inalienable rights of the unborn which was created when she chose to use her body in conjunction with the body of a man. I remind you that the woman’s body, her “private property”, cannot unilaterally create a foetus — nor can the body of a man. Incidentally if it is “ private property ’ ’ public funds cannot be constitutionally directly or indirectly used by hospitals to dispose of the foetus. The premise relied on by the courts and the Legislature is a false premise because the issue is not whether the woman has a right to use her body as she wishes (of course she has and does) but rather, if perchance another human being is conceived, that human being has an inalienable right to life that neither she, nor the man, nor any State, has the legal power to destroy.

As long as the proponents of abortion, all of whom I assume condemn genocide, have no rational reason to refuse to assign the same principle of.natural law to abortion as they do to genocidé, they are inconsistent.

To sum up, conception can be legally avoided — adoption opportunties are enormous — abortion legislation except in rare medical cases is neither necessary, humanly acceptable, legal nor constitutional.

The fundamental nature of life makes impossible a classification of living, human being as nonpersons, who can be excluded from the protection of the Constitution of the United States so that their right to life can be taken from them in spite of the due process clause and equal protection clause. Such a classi*213fication is constitutionally suspect. The relationship between the classification excluding this human group of foetuses from the enjoyment of the right to life and the fabricated purposes for which the classification is made are so imperfect that it follows that the classification is clearly unconstitutional.

For instance, this abortion legislation gives the. woman the right without the knowledge of the man to destroy the foetus who has, under the New York State law, the right of inheritance for devolution of property if the father dies intestate. By this act the woman, if she should be the wife, would increase her share in the intestate estate by confiscating the inheritance rights of the foetus.

In answer to the concurring opinion of Judge Jasen, which was filed after this opinion, I merely add that there can be no debate or value judgment when the operating doctors and their nurses examine the bucket in the operating room. They should know they have destroyed living human beings, the remains of which are in the bucket. If they rely on the opinions of the self motivated, they should examine the exhibit at the Smithsonian Institute. The United Press International recently reported the birth of a foetus at 21 weeks in a New York hospital. Was it " less — than =— human ’ ’ ?

Accordingly the order of the Appellate Division should be reversed and chapter 127 of Laws of 1970 be declared unconstitutional.

Scileppi, J.

(dissenting). I concur in Judge Burke’s dissenting opinion. I would merely express this additional view.

It is my firm moral and legal belief that life begins at conception. At that moment a foetus attains existence, both in fact and in legal contemplation; it is a person entitled to all of the protection accorded by our State and Federal Constitutions. To conclude otherwise is to countenance genocide and subject our population to what the majority so casually categorizes a legislative determination of policy. As Judge Burke incisively observes, our republic was fashioned to prevent such abuses. Our system of government is rooted in the natural law and it is against those strictures that our legislation as well as our Constitutions must be judged.

That standard simply does not give sanction to the view that one life may be declared forfeit because of the whim of another. *214No rational mind can accept the proposition that a parent may order the destruction of his child because it is not born possessed of normal faculties; nor may the child, weary of the burden of an aged and infirm father or mother, condemn the parent to death. Neither has a right to life which is superior to that, of the other and both our people and their Legislature may not, as a matter of policy, authorize such malefaction. I can draw no conceptual distinction in the case of abortion.

I am not insensitive to the plight of those who would be forced to bring children into these troubled times and recognize that men and women have both a legal and ethical right to decide whether they wish to do so. Abortion is not, however, a legitimate mode of effectuating one’s choice. Contraceptive devices are readily available and pregnancy may be avoided. Thus, the choice must and can be made prior to conception.

In my view, a decision to engage in sexual intercourse necessarily entails an acceptance of the consequences and must take into account the possibility that another life' may be Created. Our society has come to understand that life, in any form, is most precious and must be protected. We cannot, therefore, allow the life of an innocent foetus to be terminated by abortion.

Moreover, even if I could embrace the position espoused by the majority that nothing more than a question of policy is involved, I could hold no other view. Once the State recognizes, as it does, that an unborn child, or in some instances an unconceived child, has property rights, it is highly irrational to withhold the most valuable of all rights, which is life itself.

Accordingly, the order appealed from should be reversed.

Chief Judge Fuld and Judges Bergan and Gibson concur with Judge Breitel; Judge Jasen concurs in an opinion in which Chief Judge Fuld and Judges Bergan, Breitel and Gibson also concur; Judges Burke and Scilbppi dissent and vote to reverse in separate opinions in each of which the other concurs.

Order affirmed.

Justice ALBIN

delivered the opinion of the Court.

Plaintiff Rosa Acuna filed a malpractice action against Dr. Sheldon Turkish, her obstetrician-gynecologist, claiming that she did not give him informed consent to perform a procedure terminating her pregnancy. In her complaint, plaintiff specifically alleges that Dr. Turkish breached a duty owed to her by failing to inform her of “the scientific and medical fact that [her six- to eight-week-old embryo] was a complete, separate, unique and irreplaceable human being” and that an abortion would result in “killing an existing human being.” Plaintiff contends that every physician, before performing an abortion, must advise the patient in clear and understandable language that “the family member [the embryo] is already in existence and that the procedure— indeed the central purpose of the procedure — is intended to kill that family member.”

Although a physician unquestionably has a common law duty to provide a woman with material information concerning the medical risks of a procedure terminating a pregnancy, we know of no common law duty requiring a physician to instruct the woman that the embryo is an “existing human being,” and suggesting that an abortion is tantamount to murder. There is not even remotely a consensus among New Jersey’s medical community or citizenry that plaintiffs assertions are medical facts, as opposed to firmly held moral, philosophical, and religious beliefs, to support the establishment of the duty she would impose on all physicians. Because the duty that plaintiff claims defendant breached did not exist at the time of their physician-patient relationship and because there is no basis for this Court to create a new duty that has *404no broad support in either the medical community or society, we reverse the Appellate Division and reinstate the trial court’s dismissal of plaintiffs lawsuit.

I.

A.

On April 6, 1996, plaintiff Rosa Acuna, then age twenty-nine, consulted with defendant Dr. Sheldon Turkish, complaining of abdominal pains and headaches.1 After examining plaintiff and conducting an ultrasound, defendant told plaintiff that she was pregnant. The ultrasound revealed that plaintiff was in her sixth to eighth week of pregnancy.2 Plaintiff was married and the mother of two daughters under the age of three, and had suffered a miscarriage in her first pregnancy. Defendant, a practicing physician for more than thirty years, had been her regular gynecologist for five years and had delivered her youngest child.

Beginning in high school, plaintiff had suffered from renal glycosuria, a kidney disorder. According to plaintiff, defendant advised her that due to complications with her kidneys, unless she had an abortion she would have only three months to live. Defendant denied making that statement or ever having an experience in which he was required to encourage a woman to terminate a pregnancy to preserve her health. Indeed, defendant claimed that plaintiff introduced the subject of abortion as an option.3

Plaintiff said that she asked defendant “if it was the baby in there” and that defendant replied, “don’t be stupid, it’s only *405blood.” Defendant could not recall how he responded but believes he likely would have told her that a “seven-week pregnancy is not a living human being,” but rather it “is just tissue at this time.”

Plaintiff admitted in a deposition that she obviously knew she was pregnant, but that she “just needed to know and [she] wanted to know if the baby was — if there was a baby already in [her].” When asked what she meant by baby, plaintiff stated, “[a] human being.” In a certification, plaintiff explained that “[a]t the start of a pregnancy, [she] knew that at some future date a human being would come into existence.” She understood that without some intervening circumstance or medical procedure, a child would be born, but what she needed to hear on the day of her visit to defendant’s office was that she was carrying then “an existing living human being.”

After consulting with her husband, plaintiff returned to defendant’s office three days later and signed a form giving her consent to perform a “TOP” (termination of pregnancy). On the form, plaintiff acknowledged that defendant “explained all of the risks and complications to [her].” That same day, defendant performed a vacuum aspiration, which ended the pregnancy.4

In the weeks afterwards, plaintiff experienced vaginal bleeding, and on May 4 was admitted into Robert Wood Johnson Hospital where she was diagnosed with an “incomplete abortion.” A dilatation and curettage was performed. After the procedure, plaintiff asked a nurse “what had happened.” The nurse replied “that the doctor had left parts of the baby inside of you.”5 At *406that point, plaintiff “started to realize that [there] was a baby and not just blood” inside of her.

After her release from the hospital, plaintiff began to do research on “early pregnancies and babies in their mother’s womb,” looking for answers and trying to reconcile the nurse’s remarks with defendant’s characterization of her pregnancy. Eventually, she concluded that the abortion procedure killed “a human being.” That realization was followed by a decline in her mental health and a later diagnosis of post-traumatic stress disorder.

B.

Plaintiff, individually and as administratrix of the estate of her “deceased infant,” Andres Acuna, filed an eleven-count malpractice complaint in the Law Division, Middlesex County, naming as defendants Dr. Turkish, his medical group (Obstetrical and Gynecological Group of Perth Amboy-Edison), and a nurse not then identified, but fictitiously named as Janet Jones, R.N.6 Plaintiff asserted wrongful death and survival claims on Andres’ behalf and negligent infliction of emotional distress, negligence, and laek-ofinformed-consent claims on her own behalf.7

Plaintiff’s lawsuit primarily focused on the theory of lack of informed consent. The complaint alleged that defendant failed to inform plaintiff that (1) “[Andres] Acuna, although a person unborn, was a complete, separate, unique and irreplaceable human being”; (2) there existed the potential risk that Andres “was capable of experiencing pain” at eight weeks gestation; (8) abortion involved “actually killing an existing human being”; (4) she would be at risk of suffering from “post-abortion syndrome,” a form of a post-traumatic stress disorder; and (5) she would come *407to realize that she “was responsible for killing her own child” and bear a weight of guilt for the rest of her life. Plaintiff further alleged that had defendant provided her with the necessary “scientific, medical and factual information surrounding the nature of abortion and the fact that [Andres] Acuna was a complete, separate and unique human being she would not have had the abortion procedure.”

The Honorable Douglas T. Hague, J.S.C., granted defendant’s motion for partial summary judgment on the wrongful death, survival, and emotional distress causes of action. Judge Hague held that a six- to eight-week-old “fetus” is a not a “person” under the Fourteenth Amendment, (citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)), or under the laws of this State for purposes of maintaining claims for wrongful death, survival, or negligent infliction of emotional distress, (citing Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988)). Plaintiffs negligence claim based on a theory of lack of informed consent was not implicated in that summary judgment motion.

The Appellate Division granted plaintiffs motion for leave to appeal and affirmed the dismissal of the wrongful death claim, but reversed the dismissal of the emotional distress claim. Acuna v. Turkish, 354 N.J.Super. 500, 505, 808 A.2d 149 (App.Div.2002) (Acuna I). In upholding the dismissal of the wrongful death claim, the panel first found that no fundamental right was “implicated by Giardina’s holding that the Wrongful Death Act does not permit recovery attributable to the wrongful death of a fetus.” Id. at 511, 808 A.2d 149. The panel rejected plaintiffs contention that the Federal Constitution’s equal protection guarantee is violated by allowing recovery for the wrongful death of a child who dies after birth from a tortious injury suffered in útero, but yet no recovery for a fetus that dies in the mother’s body from the same tortious injury. Id. at 508, 513, 808 A.2d 149. Adopting the reasoning of Alexander v. Whitman, 114 F. 3d 1392, 1400 (3d Cir.), cert. denied, 522 U.S. 949, 118 S.Ct. 367, 139 L.Ed.2d 286 (1997), which rejected a similar argument, the panel stated: “ ‘[a] mother’s relationship *408with her fetus is exactly the same whether or not she can bring a wrongful death or survivor action. It is not the relationship that is affected here, it is the ability to recover for the loss of that relationship.’ ” Acuna I, supra, 354 N.J.Super. at 511, 808 A.2d 149 (alteration in original) (quoting Alexander, supra, 114 F.3d at 1404).

Next, the panel explained “that the trial court erred in dismissing [plaintiffs] emotional distress claim on the basis that a fetus is not a ‘constitutional person.’ ” Id. at 515, 808 A2d 149. That was so because the alleged malpractice — the failure to obtain informed consent — was not a derivative claim but committed directly against plaintiff. Ibid. The panel recognized that a mother who was not advised by her physician of material information before terminating an eight-week-old pregnancy might suffer severe distress and mental anguish. Id. at 518, 808 A.2d 149. ‘The panel was guided by Giardina, supra, 111 N.J. at 420, 545 A.2d 139, which held that parents whose infant was delivered stillborn due to medical malpractice could recover damages under a theory of negligent infliction of emotional distress. Acuna I, supra, 354 N.J.Super. at 516-17, 808 A.2d 149. The panel concluded that the present case could not be logically distinguished from Giardina solely because the fetus did not survive to term.8 Id. at 517, 808 A.2d 149. The panel also considered the emotional distress claim “as a logical complement to the ‘wrongful birth’ cases, ... which focus on ‘the parents’ lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects.’” Id. at 518, 808 A.2d 149 (quoting Canesi v. Wilson, 158 N.J. 490, 501-02, 730 A.2d 805 (1999)). Accordingly, the emotional distress cause of action was reinstated. Ibid.

Although the Acuna I court assumed that a physician owes a duty of care to disclose to a pregnant woman “information that a *409prudent patient might find significant in deciding whether or not to terminate her pregnancy,” notably, it did not address “the fact-sensitive issues concerning what dangers incident to, or consequences resulting from, such [an abortion] procedure would be ‘material’ to the ‘prudent patient.’ ” Id. at 514, 808 A.2d 149. The parties agreed that the resolution of those issues needed to “await a complete factual record.” Ibid.

C.

On remand, based on her review of the complete record, the Honorable Amy P. Chambers, P.J. Cv., granted defendant’s motion for summary judgment on plaintiffs remaining claims. Judge Chambers observed that although the Appellate Division ruled that a woman could maintain an emotional distress claim against a physician who does not obtain informed consent before terminating a pregnancy, it did not decide whether plaintiff had presented facts to support her claim that defendant withheld from her material information that a reasonably prudent woman would need to know before consenting to an abortion. In the summary judgment motion, Judge Chambers had to address the assertion east by plaintiff in her complaint — that, as a matter of law, defendant had a duty to inform plaintiff that her embryo “was a complete, separate, unique and irreplaceable human being” and that an abortion resulted in “killing an existing human being.”

Judge Chambers noted that the issue raised did not concern “the information a physician should provide a woman about the stage of her pregnancy or the embryonic and fetal development process” or the situation of a woman “carrying a viable fetus.” As Judge Chambers pointed out, plaintiff understood that she was pregnant and that “she had growing within her the beginnings of a unique human life that would result in a birth of the living child if the pregnancy continued without complications or intervention,” but that she wanted to be told before agreeing to terminate her pregnancy “that a unique living human being was already in existence within her.”

*410By demanding that a physician advise a pregnant woman that her non-viable embryo “is in all material respects equivalent to a person born and alive,” plaintiff would require that the doctor convey “a value judgment not a medical fact,” according to Judge Chambers. She noted that the questions of when life begins and whether a woman should terminate a pregnancy “involve moral, philosophical, and religious questions.” She further considered that “‘those trained in the respective disciplines of medicine, philosophy, and theology’ ” have failed to reach a consensus about when life begins, (quoting Roe, supra, 410 U.S. at 159, 93 S.Ct. at 730, 35 L.Ed.2d at 181), or “‘about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage,’ ” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674, 697 (1992)). The law has left the question of whether to abort or go to term with a non-viable embryo, Judge Chambers continued, “for each woman to decide for herself.” Judge Chambers concluded that in view of the “current state of the law and the lack of consensus” on the beginning-of-life question — a question implicating more than medical information — a physician is not required to advise a woman that her non-viable embryo “is a living human being” to obtain her informed consent for an abortion. Thus, plaintiffs lack-of-informed consent and emotional distress claims were dismissed.

D.

In Acuna v. Turkish, 384 N.J.Super. 395, 403-07, 894 A.2d 1208 (App.Div.2006) {Acuna II), the Appellate Division addressed plaintiffs separate appeals challenging the earlier dismissal of the wrongful death claim and the dismissal of her informed consent and emotional distress claims. The panel declined to reconsider its dismissal of the wrongful death claim in Acuna I, but determined that the motion judge should not have granted summary judgment on the informed consent and emotional distress claims. Id. at 406-07, 894 A.2d 1208. The panel did not express agree*411ment with plaintiffs assertion that a physician must disclose to a “pregnant mother that her unborn child is in existence before she can make an informed decision on whether” to undergo a termination-of-pregnancy procedure. Id. at 403-04, 894 A.2d 1208 (internal quotation marks omitted). Nevertheless, the panel found that a jury issue remained concerning whether defendant accurately answered plaintiffs question, “[I]s the baby already there?” Id. at 404, 894 A.2d 1208 (alteration in original). The panel perceived the sole issue in dispute to be “quite narrow, i.e., what medical information is material and must be disclosed by an obstetrician when advising a patient to terminate a pregnancy and what medical information is material when the patient asks if the ‘baby” is already ‘there?’ ” Id. at 406, 894 A.2d 1208. It concluded “that summary judgment was inappropriate because a reasonable patient” might not consider the information defendant imparted to plaintiff to be “the information necessary to make an informed decision.” Ibid. On that basis, the panel remanded the issue for trial, allowing both sides to present expert testimony to aid the jury. Id. at 406-07, 894 A.2d 1208.

We granted defendant’s petition for certification seeking review of the Appellate Division’s decision reinstating plaintiffs claims related to lack of informed consent, 188 N.J. 217, 902 A.2d 1234 (2006), but dismissed plaintiffs appeal as of right challenging the dismissal of her wrongful death and survival claims, 189 N.J. 420, 915 A.2d 1045 (2007). We granted the motions of the American Civil Liberties Union, the American Civil Liberties Union of New Jersey, and the New Jersey Obstetric and Gynecology Society to participate as amici curiae in support of defendant’s petition.

II.

A.

The issue before this Court, as framed by plaintiff in her complaint and throughout the litigation, is whether defendant failed to provide her with material medical information concerning *412the nature of the six- to eight-week-old embryo she was carrying and the consequences of her terminating her pregnancy.9 Plaintiff specifically contends that defendant had a duty “to explain that the procedure [would] terminate the life of a living member of the species Homo sapiens, that is a human being.” Plaintiff contends that “there is a critical difference between agreeing to a procedure that would prevent a human being from coming into existence, and agreeing to a procedure that terminates the life of an existing living human being.” (Emphasis added). She states that she will prove through expert testimony that her six- to eight-week-old embryo was an existing human being. In short, plaintiff submits that defendant was required to tell her that by consenting to an abortion she, in effect, was agreeing to “kill a child of [hers] already in existence.”

It is equally important to note what is not at issue. Despite defendant’s “don’t-be-stupid-it’s-only-blood” remark in describing the developmental stage of her embryo, plaintiff understood that without medical intervention or some other superseding circumstance, such as a miscarriage, she would give birth to a child in seven more months. That is, plaintiff did not take defendant’s comment to mean that her pregnancy was compromised. Plaintiff, moreover, does not claim that defendant’s alleged expression concerning the dangers to her health if she went to term affected her decision to end her pregnancy.10 As she has repeatedly said, to make an informed decision whether to terminate her pregnancy, she needed to know that her embryo was even at that point an existing human being.

*413Defendant and amici argue that it would be bad public policy, and probably unconstitutional, under the banner of the law of informed consent, to compel obstetricians to voice plaintiffs non-medical and ideologically-driven viewpoint in the ongoing debate on abortion. They maintain that whether a six- to eight-week-old embryo is an “existing human being” is not a biological fact, but a moral, theological, and highly personal judgment that has sharply divided society, and therefore it would be inappropriate to impose a duty on doctors to take sides in this highly charged debate. Defendant and amici also submit that requiring physicians to instruct women seeking an abortion that they will be killing their babies if they go through with terminating their pregnancy places an unconstitutional burden on a woman’s right of self-determination. Additionally, they claim that mandating that a physician express a non-medical and value-laden viewpoint conflicting with the physician’s own strongly held personal and moral beliefs violates his First Amendment right to the exercise of free — not coerced — speech.

B.

Ultimately, we must decide whether, under the common law duty to obtain informed consent, a physician is required to advise a woman, who is in the sixth to eighth week of pregnancy, that an abortion procedure will kill not just a potential life, but an actual existing human being. We first turn to the law of duty in general, then to a physician’s duty to ensure a patient has material information to give informed consent, and last decide whether physicians have a legal duty to give the instructions proposed by plaintiff.

A duty is an obligation imposed by law requiring one party “to conform to a particular standard of conduct toward another.” Prosser & Keeton on Torts: Lawyer’s Edition § 53, at 356 (W. Page Keeton ed., 5th ed.1984). The recognition or establishment of a legal duty in tort law is generally a matter for a court to decide. Clohesy v. Food Circus Supermarkets, 149 N.J. *414496, 502, 694 A.2d 1017 (1997). One scholarly treatise has put the issue in quite simple, if not specific, terms: “No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Prosser, supra, at 359. Central to the determination of whether a duty does or should exist is a “value judgment, based on an analysis of public policy,” Kelly v. Gwinnett, 96 N.J. 538, 544, 476 A.2d 1219 (1984), and notions of fairness, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). The fairness and public policy considerations involve weighing several factors: “ ‘the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.’ ” Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573, 675 A.2d 209 (1996) (quoting Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110).

In weighing competing public policy concerns, courts must consider the real-life consequences of imposing a duty and cannot be oblivious of the social realities of the day. In short, courts should be reluctant to impose a duty that society is unwilling to accept. Courts also must be conscious of whether the “desirable policy” proposed by a party “is the subject of intense controversy” and therefore likely to be divisive. Kelly, supra, 96 N.J. at 545, 476 A.2d 1219.

C.

The underlying basis for the doctrine of informed consent is a patient’s right of self-determination, the right to intelligently decide whether to choose or decline a particular medical procedure. See Niemiera v. Schneider, 114 N.J. 550, 562, 555 A.2d 1112 (1989); Schloendorff v. Soc’y of the N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Cardozo, J.) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”), overruled on other grounds, Bing *415 v. Thunig, 2 N.Y.2d 656, 168 N.Y.S.2d 3, 143 N.E.2d 3 (1957). The informed consent doctrine has evolved from a concept originally-sounding in battery to a firmly established principle of negligence involving the duty of care a doctor owes his patient. Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 546-47, 800 A.2d 73 (2002).

It is now settled that a physician has a legal duty to disclose to the patient all medical information that a reasonably prudent patient would find material before deciding whether to undergo a medical procedure. Largey v. Rothman, 110 N.J. 204, 211-12, 540 A.2d 504 (1988). The standard focuses on what a reasonable patient needs to know — that is, what a reasonable patient would likely find significant given the risks — to make an informed decision in foregoing or assenting to a medical procedure. Howard, supra, 172 N.J. at 547, 800 A.2d 73; see also Matthies v. Mastromonaco, 160 N.J. 26, 36, 733 A.2d 456 (1999) (“The standard obligates the physician to disclose only that information material to a reasonable patient’s informed decision.”). Generally, the physician is required to inform the patient of the available medical options, the risks associated with those options, and the nature of the intended procedure. Howard, supra, 172 N.J. at 548, 800 A.2d 73; Largey, supra, 110 N.J. at 208, 540 A.2d 504.

A plaintiff filing a negligence action predicated on lack of informed consent, such as in this case, must demonstrate that a physician withheld medical information that a reasonably prudent pregnant woman in like circumstances would have considered material before consenting to a termination of pregnancy. Howard, supra, 172 N.J. at 548, 800 A.2d 73 (stating that “patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure”); Blazoski v. Cook, 346 N.J.Super. 256, 270, 787 A.2d 910 (App.Div.2002) (“Actions for informed consent are limited to the nondisclosure of medical information.”); see also Model Jury Charge (Civil) § 5.36(C) (Mar.2002) (“The doctor has a duty to explain, in words the patient *416can understand, all material medical information and risks.”). See generally American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, Opinion 8.08 (1981) (“The physician’s obligation is to present the medical facts accurately to the patient____”).

D.

Plaintiff is prepared to present expert testimony to establish, as a biological fact, that her embryo was “an existing human being” — “a member of the species Homo sapiens” — at the time of the abortion. Defendant, however, can present expert witnesses who will dispute the point and who will assert that plaintiffs characterization of the embryo as a living human being is a moral, theological, or ideological judgment, not a scientific or biological one. Clearly, there is no consensus in the medical community or society supporting plaintiffs position that a six- to eight-week-old embryo is, as a matter of biological fact — as opposed to a moral, theological, or philosophical judgment — “a complete, separate, unique and irreplaceable human being” or that terminating an early pregnancy involves “actually killing an existing human being.”

The instructions that plaintiff would have us mandate obstetricians to give are certainly not the medical professional norm within this State, as noted by amicus the New Jersey Obstetric and Gynecology Society. Plaintiff has not pointed out whether even a small minority of physicians currently give such instructions. Plaintiff has not directed us to any jurisdiction or any court that has found a common law duty requiring doctors to tell their pregnant patients that aborting an embryo is the killing of an existing human being — an instruction suggesting that both the doctor and patient would be complicit in committing the equivalent of murder.

Plaintiff cannot find support for creating the legal duty she seeks to impose on doctors in either this State’s law or federal law. For example, in construing New Jersey’s Wrongful Death

*417Act, this Court concluded that the Legislature did not intend to include a fetus within the definition of a “person” covered by the Act. Giardina, supra, 111 N.J. at 420-21, 428, 545 A.2d 139. Accordingly, the “Act does not permit recovery attributable to the wrongful death of an infant before birth.” Id. at 413, 545 A.2d 139.

Additionally, as the Giardina Court observed, in enacting the New Jersey Code of Criminal Justice, “the Legislature considered and rejected the opportunity to classify a fetus as a ‘person’” under our current homicide statutes. Id. at 422, 545 A.2d 139 (citing 2 Final Report of the New Jersey Criminal Law Revision Commission: Commentary 150 (1971)). The Final Report noted “that at common-law homicide could be committed only against a ‘human being’ and that [a human being] did not include a fetus.” Ibid; see also State in the Interest of A.W.S., 182 N.J.Super. 278, 280, 440 A.2d 1144 (App.Div.1981) (concluding that homicide statutes do not apply to fetal death based on review of legislative history and common law).

The United States Supreme Court in Roe, supra, eschewed answering the “difficult question of when life begins,” stating that “[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” 410 U.S. at 159, 93 S.Ct. at 730, 35 L.Ed.2d at 181. In Casey, supra, the United States Supreme Court repeatedly refers, when speaking of a fetus or embryo, to the State’s “interest in potential life,” and scrupulously avoids describing either a fetus or an embryo as an existing human being. 505 U.S. at 875-76, 112 S.Ct. at 2820, 120 L.Ed.2d at 714; see also Gonzales v. Carhart, 550 U.S.-, 127 S.Ct. 1610, 1626, 167 L.Ed.2d 480, 502 (2007) (noting that Casey recognized importance of “State’s interest in potential life”). In Casey, supra, the Court held that a state could not enact a regulation placing an “undue burden” on “a woman seeking an abortion of a nonviable fetus.” 505 U.S. at 877, 112 S.Ct. at 2820, *418120 L.Ed.2d at 714-15. The Court also recognized that, in certain circumstances, a physician might have a First Amendment right to be free from government-compelled speech. Id. at 884, 112 S.Ct. at 2824, 120 L.Ed.2d at 719; see also Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752, 762 (1977) (stating that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”).

It also bears mentioning that a panel of the United States Court of Appeals for the Eighth Circuit upheld a United States District Court’s preliminary injunction of a South Dakota statute mandating that a doctor disclose to a patient seeking an abortion information similar to the “biological facts” that plaintiff urges that we include in our common law doctrine of informed consent. Planned Parenthood Minn. v. Rounds, 467 F.3d 716, 719 (8th Cir.2006), vacated for rehearing en banc as stated in, 213 Fed.Appx. 508 (8th Cir.2007). The South Dakota statute requires that a physician, before performing an abortion and as a precondition to informed consent, advise the patient that “the abortion will terminate the life of a whole, separate, unique, living human being” and that “by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.” S.D. Codified Laws § 34-23A-10.1(l)(b), (d). The statute defines “human being” as an “individual living member of the species of Homo sapiens.” S.D. Codified Laws § 34-23A-l(4). The panel was unaware of any federal appellate court having reviewed similar disclosure requirements. Rounds, supra, 467 F.M at 726. A majority of the panel upheld the district court’s preliminary injunction because the compelled disclosures “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” Id. at 727. The panel’s decision has been vacated and the matter will be determined en banc.

Rounds, of course, addresses a statute enacted by the democratically elected representatives of a state whereas plaintiff is *419urging this Court to adopt through its common law the informed consent provisions of that highly controversial statute. Clearly, the compelled disclosure required by the South Dakota Legislature is pushing the doctrine of informed consent to the edge of a new constitutional fault line. See Robert Post, Informed, Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L.Rev. 939, 956-60 (2007) (noting that to compel physicians to tell pregnant women that embryo or fetus is “human being” would “appear to compel a physician to proclaim ‘adherence to an ideological point of view he finds unacceptable,’ and in that way to justify rigorous and almost certainly fatal First Amendment scrutiny”).

We need not reach the constitutional arguments raised by defendants and amici who claim that it is both an undue burden on a woman’s right of self-determination and a violation of a physician’s First Amendment free speech right to compel a physician to advise a pregnant woman that an embryo is an existing human being and that an abortion is tantamount to killing a child. We do not resolve those arguments because we cannot find that New Jersey’s common law imposes a legal duty on a physician to give the instructions sought by plaintiff. In light of our judicial precedents, we will not place a duty on doctors when there is no consensus in the medical community or among the public supporting plaintiffs assertions.

On the profound issue of when life begins, this Court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide. We are not unmindful of the raging debate that has roiled the nation and of the sincerely and passionately held beliefs by those on opposite sides of the debate. We are sympathetic to the deep pain plaintiff has suffered in the aftermath of the termination of her pregnancy. However, the common law doctrine of informed consent requires doctors to provide their pregnant patients seeking an abortion only with material medical information, including *420gestational stage and medical risks involved in the procedure. Under that doctrine of informed consent, the knowledge that plaintiff sought from defendant cannot be compelled from a doctor who may have a different scientific, moral, or philosophical viewpoint on the issue of when life begins. Therefore, we do not find that the common law commands a physician to inform a pregnant patient that an embryo is an existing, living human being and that an abortion results in the killing of a family member.

III.

We have considered plaintiffs argument as she has presented it to us both in her briefs and oral argument to this Court. Plaintiff has articulated one basic legal ground underpinning her lack-of-informed-consent claim — defendant’s failure to disclose that her embryo was an existing human being. As we have concluded, defendant had no legal duty to make such a disclosure.

Because there are no material issues of fact in dispute and defendant is entitled to judgment as a matter of law, we conclude that the Appellate Division erred in reversing the motion judge’s order granting summary judgment in defendant’s favor. We therefore reinstate the order dismissing plaintiffs lack-of-informed-consent and emotional distress claims, which were the only remaining claims in this case.

Justice HOENS did not participate.

For reversal and reinstatement — Justices LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO — 5.

Opposed — None.