209 Wis.2d 112 (1997) 561 N.W.2d 729

STATE of Wisconsin EX REL. ANGELA M.W., Petitioner-Petitioner,
v.
William KRUZICKI, Sheriff of Waukesha County, Rexford W. Titus, III, President, Waukesha Memorial Hospital, Fred Syrjanen, Director, Lawrence Center & Director Of Chemical Dependency At Waukesha Memorial Hospital, Circuit Court for Waukesha County, The Honorable Kathryn W. Foster, Waukesha County Corporation Counsel, Thomas Farley and Assistant Corporation Counsel William Domina, Respondents-Respondents.^[†]

No. 95-2480-W.

Supreme Court of Wisconsin.

Oral argument October 30, 1996. Decided April 22, 1997.

*114 For the petitioner-petitioner there were briefs by Robin Shellow, Angela Conrad Kachelski and Law Offices of Robin Shellow; Peter Koneazny and American Civil Liberties Union of Wisconsin Foundation, both of Milwaukee and Mary Wyckoff and American Civil Liberties Union, New York, NY and oral argument by *115 Angela Conrad Kachelski and Sara Mandelbaum of the ACLU's Womens Rights Project.

For the respondents-respondents there was a brief by William J. Domina, Margaret M. Zimmer and Waukesha County Assistant Corporation Counsel, Waukesha and oral argument by William J. Domina and Jill C. Vento.

Guardian ad Litem brief was filed by Jill C. Vento and Brenner, Brenner & Wall, Waukesha.

Amicus curiae was filed by Carol E. Stauder, John M. Stoiber, Thomas L. Potter, assistant district attorneys and E. Michael McCann, district attorney, Milwaukee.

Amicus curiae was filed by Stephen W. Hayes, Timothy W. Feeley, Susan E. Lovern and Von Briesen, Purtell & Roper, S.C., Milwaukee for the National Association of Counsel for Children.

Amicus curiae was filed by Keith A. Fournier, Jeffrey A. Brauch and The American Center for Law & Justice, Virginia Beach, VA and Thomas Patrick Monaghan and New Hope Life Center\The American Center for Law & Justice, New Hope, KY, for the New Hope Life Center and The American Center for Law & Justice.

Amicus curiae was filed by Michael H. Schaalman and Quarles & Brady, Milwaukee; Carol Tracy, Susan Frietsche and Women's Law Project, Philadelphia, PA; Lynn Paltrow, Nancy Stearns and Center for Reproductive Law & Policy, New York, NY; Nadine Taub and Women's Rights Litigation Clinic, Newark, NJ, for the American Public Health Association, The Drug Policy Foundation, The National Black Women's Health Project, The National Center for Youth Law, The National Latina Health Project, The National Women's Health Network, The Northwest Women's Law Center, The *116 NOW Legal Defense and Education Fund, Planned Parenthood of Wisconsin, Inc., The Wisconsin Council on Children and Families and The Wisconsin Women's Network.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, Angela M.W., seeks review of a court of appeals' decision^[1] denying her request for either a writ of habeas corpus or a supervisory writ to prohibit the Waukesha County Circuit Court, Kathryn W. Foster, Judge, from continuing to exercise jurisdiction in a CHIPS (child alleged to be in need of protection or services) proceeding. She maintains that the CHIPS statute does not confer jurisdiction over her or her viable fetus. In the alternative, if the CHIPS statute does confer such jurisdiction, the petitioner contends that as applied to her, it violates her equal protection and due process rights. Because we determine that the legislature did not intend to include a fetus within the Children's Code definition of "child," we reverse the decision of the court of appeals.

¶ 2. Although we visit in the facts of this case the daunting social problem of drug use during pregnancy, the essence of this case is one of statutory construction. The relevant facts are undisputed.

¶ 3. The petitioner was an adult carrying a viable fetus with a projected delivery date of October 4, 1995. Based upon observations made while providing the petitioner with prenatal care, her obstetrician suspected that she was using cocaine or other drugs. Blood tests performed on May 31, June 26, and July 21, 1995, *117 confirmed the obstetrician's suspicion that the petitioner was using cocaine or other drugs.

¶ 4. On July 21, 1995, the obstetrician confronted the petitioner about her drug use and its effect on her viable fetus. The petitioner expressed remorse, but declined the obstetrician's advice to seek treatment. On August 15, 1995, a blood test again confirmed that the petitioner was ingesting cocaine or other drugs. Afterward, the petitioner canceled a scheduled August 28, 1995, appointment, and rescheduled the appointment for September 1, 1995. When she failed to keep the September 1 appointment, her obstetrician reported his concerns to Waukesha County authorities.

¶ 5. On September 5, 1995, the Waukesha County Department of Health and Human Services (the County) filed a "MOTION TO TAKE AN UNBORN CHILD INTO CUSTODY," pursuant to Wis. Stat. § 48.19(1)(c) (1993-94).^[2] The caption read "In the Matter of: JOHN OR JANE DOE, A 36 Week Old Unborn Child." In its motion, the County requested an order "removing the above-named unborn child from his or her present custody, and placing the unborn child" in protective custody. The motion was supported by the affidavit of the petitioner's obstetrician, which set out the obstetrician's observations and medical opinion that "without intervention forcing [the petitioner] to *118 cease her drug use," her fetus would suffer serious physical harm.

¶ 6. In an order filed on September 6, 1995, the juvenile court directed that:

the [petitioner's] unborn child. . .be detained under Section 48.207(1)(g), Wis. Stats., by the Waukesha County Sheriff's Department and transported to Waukesha Memorial Hospital for inpatient treatment and protection. Such detention will by necessity result in the detention of the unborn child's mother. . . .

¶ 7. Later that same day, before the protective custody order was executed, the petitioner presented herself voluntarily at an inpatient drug treatment facility. As a result, the juvenile court amended its order to provide that detention would be at the inpatient facility. The court further ordered that if the petitioner attempted to leave the inpatient facility or did not participate in the facility's drug treatment program, then both she and the fetus were to be detained and transported to Waukesha Memorial Hospital.

¶ 8. Also on September 6, 1995, the County filed a CHIPS petition in the juvenile court, alleging that the petitioner's viable fetus was in need of protection or services because the petitioner "neglect[ed], refuse[d] or [was] unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child, pursuant to Section 48.13(10) of the Wisconsin Statutes."^[3] The County alleged that the petitioner's 36-week-old viable fetus had been exposed *119 to drugs prenatally through the mother's drug use. Instead of a birth date, the petition stated "Due Date 10/4/95." In the space designated for indicating the sex of the subject child, the petition stated "Unknown."

¶ 9. On September 7 and 8, 1995, the juvenile court held detention hearings pursuant to § 48.21(1).^[4] At the first hearing, the petitioner appeared by telephone, but without counsel. At the second hearing, now represented by counsel, she appeared again by telephone, and objected to the juvenile court's exercise of jurisdiction. The juvenile court rejected her jurisdictional challenge, and scheduled a plea hearing on the CHIPS petition for September 13, 1995.

¶ 10. On September 13, 1995, the petitioner commenced an original action in the court of appeals, seeking a writ of habeas corpus, or, in the alternative, a supervisory writ staying all proceedings in the juvenile court and dismissing the CHIPS petition. In support of her request, the petitioner asserted that Chapter 48 does not vest the juvenile court with jurisdiction over *120 her or her viable fetus. Alternatively, if the statute does grant such authority, the petitioner argued that it violates the constitutional guarantees of procedural and substantive due process, as well as equal protection of the laws.

¶ 11. The court of appeals declined to stay the juvenile court proceedings, and issued an order on September 21, 1995, denying both writ petitions. The petitioner gave birth to a baby boy on September 28, 1995. Subsequently, the court of appeals issued an opinion supplementing its earlier order.

¶ 12. A divided court of appeals determined that the juvenile court did not exceed its jurisdiction in this case. State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 541 N.W.2d 482 (Ct. App. 1995).^[5] The court reasoned that the United States Supreme Court, the Wisconsin legislature, and this court have each articulated public policy considerations supporting the conclusion that a viable fetus is a "person" within the meaning of the CHIPS statute's definition of "child." The court also held that application of the CHIPS statute to the petitioner did not deprive her of equal protection or due process, since the statute was a properly tailored means of vindicating the State's compelling interest in the health, safety, and welfare of a viable fetus. The petitioner then sought review in this court, raising substantially the same arguments she raised before the court of appeals.^[6]

*121 ¶ 13. We stress at the outset of our analysis that this case is not about the propriety or morality of the petitioner's conduct. It is also not about her constitutional right to reproductive choice guaranteed under Roe v. Wade, 410 U.S. 113 (1973). Rather, this case is one of statutory construction. The issue presented is whether a viable fetus is included in the definition of "child" provided in Wis. Stat. § 48.02(2).

[1-5]

¶ 14. The interpretation of a statute presents a question of law which this court reviews under a de novo standard. Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996). Our primary purpose when interpreting a statute is to give effect to the legislature's intent. We first look to the language of the statute, and if the language is clear and unambiguous, we define the language of the statute in accordance with its ordinary meaning. If the language of the statute is ambiguous and does not clearly set forth the legislative intent, we will construe the statute so as to ascertain and carry out the legislative intent. In construing an ambiguous statute, we examine the history, context, subject matter, scope, and object of the statute. Id. at 220 (citing Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996)).

¶ 15. The statutory language at issue confers on the juvenile court "exclusive original jurisdiction over a *122 child alleged to be in need of protection or services which can be ordered by the court. . . ." § 48.13. A "child" is defined in Chapter 48 as "a person who is less than 18 years of age." § 48.02(2). The petitioner contends that the Chapter 48 definition of "child" is clear on its face, and mandates the conclusion that Chapter 48 uses the term "child" to mean a person born alive. In support, she asserts that by having no "age," a fetus cannot be a person who is less than 18 years of age.^[7] The petitioner submits that it is therefore unnecessary for this court to construe the statute to determine its meaning. In contrast, the County asserts that courts in this State and other jurisdictions have determined that "child" and "person" are ambiguous terms. As such, the County contends that we are required to look beyond the language of the statute for the meaning of "child."

[6, 7]

¶ 16. Statutory language is ambiguous if reasonable minds could differ as to its meaning. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). While the parties' differing interpretations of a statute do not alone create ambiguity, equally sensible interpretations of a term by different authorities are indicative of the term's ability to support more than one meaning. Id.

¶ 17. Case law reveals that different courts have given different meanings to the terms "person" and *123 "child." This court has previously held that a viable fetus is a "person" for purposes of Wisconsin's wrongful death statute. Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis. 2d 14, 22, 148 N.W.2d 107 (1967). On the other hand, the United States Supreme Court has concluded that a fetus is not a "person" under the Fourteenth Amendment to the United States Constitution. Roe, 410 U.S. at 158. Perhaps most compelling, courts in other states have arrived at different interpretations of statutory language nearly identical to that in § 48.02(2). Compare State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (holding that a third trimester fetus is not "a child under eighteen years of age," as provided in Ohio's child endangerment statute), with Whitner v. State, No. 24468, 1996 WL 393164, at *3 (S.C. July 15, 1996) (concluding that a viable fetus is a "person under the age of eighteen," pursuant to South Carolina's child abuse and endangerment statute). Against this backdrop of conflicting authority, we conclude that the term "child" is ambiguous.

¶ 18. In construing the statute, we turn first to the legislative history. Chapter 48 came into existence in 1919 as part of a consolidation and revision of statutory provisions dealing generally with neglected, dependent, or delinquent children. § 2, ch. 614, Laws of 1919. The legislation defined a dependent or neglected child as "any child under the age of sixteen" meeting certain criteria. Wis. Stat. § 48.01(1)(a) (1919). Twenty years later, the definitions were amended to raise the age limit to eighteen years. § 2, ch. 524, Laws of 1939. In 1955, the legislature created a separate subsection for definitions, describing a child as "a person under 18 years of age." § 7, ch. 575, Laws of 1955. In 1977, the legislature created § 48.02(2), which defined a child as a "person who is less than 18 years of age." § 5, ch. 354, *124 Laws of 1977. Finally, substantial changes made to Chapter 48 in the last legislative session have left the definition of "child" unaltered for purposes of our analysis. 1995 Wis. Act 27, § 2424; 1995 Wis. Act 77, § 44; 1995 Wis. Act 275; 1995 Wis. Act 352, § 10p; 1995 Wis. Act 448.^[8]

¶ 19. In examining the legislative history, we find the drafting files of the more recent amendments to the Code devoid of information which might illuminate our search. We also find no news accounts of debate, dialogue, or even consideration of whether fetus should be included in the definition of "child" in Chapter 48. Furthermore, the parties offer no specific historical references to support their respective positions. The issue of whether the Chapter 48 definition of "child" includes a fetus is one of a controversial and complex nature. One would expect heated dialogue and intense debate if the legislature intended to include fetus within the definition of "child." Yet, we are met with legislative silence.

¶ 20. The dissent maintains that the legislature has impliedly ratified the court of appeals' interpretation of § 48.02(2), because amendments to the Code in the months since the court of appeals' decision have left undisturbed the language at issue. Dissent at 150-52. However, the very cases relied upon by the dissent demonstrate the fundamental error of applying the doctrine of legislative acquiescence to the present case.

*125 [8]

¶ 21. The application of the doctrine of legislative acquiescence is justified when the legislature can be "presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged." Reiter v. Dyken, 95 Wis. 2d 461, 471, 290 N.W.2d 510 (1980) (quoting Zimmerman v. Wisconsin Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968)). Of course, if this court has accepted review of a court of appeals' decision construing a statute, the legislature cannot be presumed to know that the court of appeals' interpretation "will remain unchanged." Our acceptance of review makes clear that the construction given to a statute by the court of appeals is subject to change. Thus, the doctrine presupposes the existence of a decision which, unlike the instant court of appeals' decision, is not subject to further appellate review.

¶ 22. This principle is confirmed by reviewing those cases cited by the dissent in which this court found implied legislative ratification of a prior decision. We observe that in each case, the legislature acquiesced to a prior decision that was either unappealable or no longer subject to review. See State v. Johnson, 207 Wis. 2d 240, 247, 558 N.W.2d 375 (1997) (finding legislative acquiescence to Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972)); State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990) (citing State v. Harris, 123 Wis. 2d 231, 365 N.W.2d 105 (Ct. App. 1985), and State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 922 (Ct. App. 1988)); Reiter, 95 Wis. 2d at 470-72, 290 N.W.2d 510 (1980) (citing Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 111 N.W.2d 495 (1961)); Milwaukee Fed'n of Teachers, Local No. 252 v. Wisconsin Employment Relations Comm'n, 83 Wis. 2d 588, 600-1, 266 N.W.2d *126 314 (1978) (citing Board of Sch. Dirs. of Milwaukee v. WERC, 42 Wis. 2d 637, 168 N.W.2d 92 (1969)); Zimmerman, 38 Wis. 2d at 632-634 (citing McGonigle v. Gryphan, 201 Wis. 269, 229 N.W. 81 (1930), and Quante v. Erickson, 2 Wis. 2d 527, 87 N.W.2d 249 (1958)).

¶ 23. In this case, the petitioner filed a timely petition for review of the court of appeals' decision, and we granted review on January 23, 1996. The purported acts of legislative acquiescence occurred after that date. The dissent fails to explain how the legislature can be presumed to possess advance knowledge that the court of appeals' construction of § 48.02(2) would "remain unchanged" upon review by this court. The obvious answer is that the legislature made the amendments to the Code with full knowledge that the court of appeals' construction of § 48.02(2) was subject to alteration on further review by this court. Thus, there was no unappealable decision to which the legislature could acquiesce.^[9]

*127 [9]

¶ 24. We turn next to a consideration of context, examining the § 48.02(2) definition of "child" in conjunction with other relevant sections of the Code. When attempting to ascertain the meaning of statutory language, we are obligated to avoid a construction which would result in an absurdity. Jungbluth, 201 Wis. 2d at 327. With this in mind, we note that certain relevant sections of the Code would be rendered absurd if "child" is understood to include a viable fetus. For example, in this case, the initial order taking the fetus into custody was issued pursuant to § 48.19(1)(c). That statute allows a child to be taken into custody by judicial order "upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody." [Emphasis added.] It is obviously inappropriate to apply this language to a viable fetus in utero.

¶ 25. Section § 48.19(2) requires the person taking a child into physical custody to immediately notify the parent by the most practical means. Yet, a pregnant woman would never need notification that her fetus had been taken into "physical custody," for she would already have such notice by virtue of the concomitant circumstance of her own detention.

¶ 26. Section 48.20(2) requires a person taking a child into custody to make every effort to immediately release the child to its parent. This language assumes that the child is at some point removed from the parent. Again, it is axiomatic that a viable fetus in utero cannot be removed from a pregnant woman in the sense conveyed by the statute.

¶ 27. By reading the definition of "child" in context with other relevant sections of Chapter 48, we find a compelling basis for concluding that the legislature *128 intended a "child" to mean a human being born alive. Code provisions dealing with taking a child into custody, providing parental notification, and releasing a child from custody would require absurd results if the § 48.02(2) definition of "child" included a fetus. Each of the provisions addresses a critical juncture in a CHIPS proceeding. Yet, each also anticipates that the "child" can at some point be removed from the presence of the parent. It is manifest that the separation envisioned by the statute cannot be achieved in the context of a pregnant woman and her fetus.^[10]

¶ 28. The court of appeals determined, and the County asserts, that some prior decisions of this court support the proposition that a fetus is a child under the Children's Code. For example, the court of appeals analogized the present case to those in which this court has recognized a degree of fetal personhood under tort law. In support of its analogy, the court of appeals cited our holding in Kwaterski that "an eighth-month, viable unborn child, whose later stillbirth is caused by the wrongful act of another, is `a person' within the meaning of [the wrongful death statute] so as to give rise to a wrongful-death action by the parents of the stillborn infant." Kwaterski, 34 Wis. 2d at 15.

¶ 29. The court of appeals also reasoned that because the CHIPS statute is remedial in nature, its *129 use of "person" should be liberally construed to include a fetus so as to effectuate the statute's purpose of protecting children. Angela M.W., 197 Wis. 2d 558-59 (citing Kwaterski, 34 Wis. 2d at 21). It also noted that in the earlier case of Puhl v. Milwaukee Auto Ins. Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959), overruled on other grounds by Stromsted v. St. Michael Hosp., 99 Wis. 2d 136, 299 N.W.2d 226 (1980), this court recognized a cause of action of an infant for injuries sustained before birth. In construing "child" to include a fetus, the court of appeals relied heavily on our statement in Puhl that "[i]f the common law has any vitality, . . . it should be elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern, complex society." Id. at 357.

¶ 30. Initially, we note that this court has historically been wary of expanding the scope of the Children's Code by reading into it language not expressly mentioned within the text of Chapter 48.^[11] While Chapter 48 is to be liberally construed, § 48.01(2), we will not discern from the statute a legislative intent that is not evident. Green County Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 652, 469 N.W.2d 845 (1991). Furthermore, a directive to construe the statute liberally to effectuate its purpose does not give license to liberally expand the definition of "child" to the stages before birth or after the age of 18. *130 The directive is to liberally construe the statute to effectuate its purpose of providing for the care, protection, and development of children. See § 48.01(1)(b), (2). The logical extension of the dissent's argument regarding liberal construction would expand the definition of "child" to the moment after conception. No party in this case is advancing such a far-reaching argument. Finally, our decisions placing limited legal duties upon a third person should not be read to confer full legal status upon a fetus. Each must be examined to identify the particular rights and policies underlying the law that is being addressed.

¶ 31. We find the tort law analogy unpersuasive in this context. Instead, we agree with the United States Supreme Court that declaring a fetus a person for purposes of the wrongful death statute does no more than vindicate the interest of parents in the potential life that a fetus represents. See Roe, 410 U.S. at 162.^[12] Indeed, we have recognized that until born, a fetus has no cause of action for fetal injury:

Injuries suffered before birth impose a conditional liability on the tort-feasor. This liability becomes unconditional, or complete, upon the birth of the injured separate entity as a legal person. If such personality is not achieved, there would be no liability [to the fetus] because of no damage to a legal person. *131 Puhl, 8 Wis. 2d at 356.^[13] For these reasons, we agree with the court of appeals' dissent that our tort law jurisprudence dealing with fetal injury has limited applicability to the present case.

¶ 32. Similarly, we reject the County's argument that the protections accorded fetuses by property law have a bearing on the Children's Code definition of "child." As the dissent below noted, "[P]roperty law does not confer the full rights of personhood upon the fetus. Instead, it creates a means of fulfilling the intentions of testators by protecting the right of a fetus to inherit property upon live birth." Angela M.W., 197 Wis. 2d at 576 n.1 [citations omitted]. When there is no live birth, there is no inheritance right.

¶ 33. We also find unpersuasive the court of appeals' citation to State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994). In Black, we held that the defendant was properly charged with feticide, "intentionally destroy[ing] the life of an unborn quick child." Wis. Stat. § 940.04(2)(a). As we noted in that case, "the words of the statute could hardly be clearer." Black, 188 Wis. 2d at 642. Unlike § 48.02(2), the language of § 940.04(2)(a) expressly references an "unborn quick child." In the present case, we lack any language approaching the unequivocal legislative statement contained in § 940.04(2)(a). While the Black court concluded *132 that the legislature has acted to protect a viable fetus in § 940.04(2)(a), that case offers little to aid us in construing the term "child" in the Children's Code.

¶ 34. Black demonstrates the ease and clarity with which the legislature may, if it so chooses, apply a statute to the unborn. In its several amendments to the Children's Code, the legislature has had ample opportunity to state in similarly clear and unambiguous terms that a fetus is a child. Yet, the legislature has failed to take such action.

¶ 35. We disagree with the dissent's assertion that L.K. v. B.B., 113 Wis. 2d 429, 335 N.W.2d 846 (1983) ("In re Baby Girl K."), has any relevance to this case. According to the dissent, this court held and determined in L.K. that the word "child" as used in Wis. Stat. § 48.415(6)(b) (1981-82) includes a fetus. Dissent at 140, n.3, 144, 147. Our reading of L.K. finds no language supporting the statements of law attributed to that case by the dissent.

¶ 36. The L.K. court held that a father's parental rights may be terminated based upon his conduct during the mother's pregnancy. The court reached that determination based upon its interpretation of § 48.415(6)(b) (1981-82), which provided in part:

In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or wellbeing of the child or the mother during her pregnancy.^[14] . . .

*133 ¶ 37. The court deduced from this statutory language a legislative intent "that a father's pre-delivery behavior be a consideration in determining whether the father had established a substantial parental relationship." L.K., 113 Wis. 2d at 438. It concluded "that a parent's action prior to a child's birth can form a sufficient basis for determining whether that parent has *134 established a substantial parental relationship with the child." Id. at 439. Nowhere in the opinion does the court even intimate that the legislature used the word "child" in § 48.415(6)(b) to include a fetus, which is not surprising, since such an inquiry was not necessary to resolve the issue presented. We therefore conclude that L.K. is not germane to our analysis.

¶ 38. The court of appeals' reliance on Roe, Kwaterski, Puhl, and Black evidences the fundamental error in its analysis. While positing the correct question-whether the legislature intended to include a fetus within the § 48.02(2) definition of "child"—the court of appeals answered a distinctly different one—whether the legislature could, consistent with the United States and Wisconsin Constitutions, have included a fetus within the term "child." Because we conclude that the legislature did not intend to equate a fetus with a child, we do not reach the question answered by the court of appeals.

¶ 39. Finally, the confinement of a pregnant woman for the benefit of her fetus is a decision bristling with important social policy issues. We determine that the legislature is in a better position than the courts to gather, weigh, and reconcile the competing policy proposals addressed to this sensitive area of the law. This court is limited to ruling on the specific issues as developed by the record before it. We base our decisions on the facts as presented by adversarial parties who often narrow the scope of a much larger policy issue.

¶ 40. This court was confronted with a similar dilemma in Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981). In Eberhardy, we acknowledged that circuit courts have the subject matter jurisdiction to order the sterilization of the mentally handicapped. However, because the *135 legislature had not yet determined the State's public policy or set guidelines for such sterilization, we directed the courts to refrain from ordering the procedure. This court stated:

This case demonstrates that a court is not an appropriate forum for making policy in such a sensitive area. Moreover, irrespective of how well tried a case may be—and we consider the instant one to have been well presented and carefully considered—there are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy to an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations. It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of experts. . . to explore the ramifications of the adoption of a general public policy. . . .

Eberhardy, 102 Wis. 2d at 570-71.

¶ 41. For similar reasons, we determine that the detention of a pregnant woman for acts harming her fetus is a policy issue best addressed initially by our legislature.^[15] Our conclusion is amply illustrated by the following exchange at oral argument:

*136 GUARDIAN AD LITEM: . . . You asked a legislative history question before. 1955 was the first time that the definition of child appeared in 48.02(2). It was revamped next in 1977 where the distinction of CHIPS was established. It was revisited again in 1996. We cannot wait another 20-some years for the legislature to address this problem.

JUSTICE BABLITCH: Are you suggesting that we hold public hearings to determine how serious the harm must be before the State intervenes? That we hold public hearings to determine whether or not this seriousness occurs in the first trimester as opposed to the third, or hold public hearings on any of the other myriad public policy ramifications that such a holding you're asking us to do necessarily implicates?

GUARDIAN AD LITEM: I agree, your Honor, that that would be the role that the legislature would take.

JUSTICE BABLITCH: These are questions that we're not equipped to deal with as a court. We don't have the AMA or people coming in to testify to us, to explain to us the various medical ramifications. We don't have ethics people coming in and explaining to us the ethical problems of interfering with the patient/physician relationship. We don't have people coming in at a public hearing to explain to us whether or not greater harm can come to a viable fetus for lack of medical care which, some people say, would be the result of what you want. We're not a legislative body.

*137 GUARDIAN AD LITEM: . . . No, you're not in the business of holding public policy—excuse me—public discussions and public forums. That clearly is the arena of the legislature. But that's exactly the question that this court needs to decide is are you willing to take on this burden and address this issue now, which we are asking you to do because these children cannot wait. We cannot wait for extensive public hearings and public policies and continuous conflicting reports. I don't think that you're going to get much different information; you're just going to get more of the same.

¶ 42. This court in no way condones the conduct of the petitioner. Yet, we are not free to register moral disapproval by rewriting the Children's Code under the guise of statutory construction.

[10]

¶ 43. Our search to ascertain and carry out the legislature's intent results in the conclusion that the legislature did not intend to include fetus within the definition of "child." The legislative history sounds in silence. Although the issue of whether to include a fetus within the definition of "child" in Chapter 48 is one of great social, medical, religious, and ethical significance, there is no record of any dialogue or consideration of the issue. A reading of § 48.02(2) in context with other relevant provisions of the Children's Code, supports the conclusion that the legislature intended "child" to mean one born alive. Despite ample opportunity, the legislature has not expressly provided that a fetus is a "child" under the Code. We decline the guardian ad litem's invitation to "take on this burden" to fill the legislative void. Moreover, the sensitive social policy issues raised in this case weigh strongly in favor of refraining from exercising CHIPS jurisdiction over a fetus until the legislature has spoken definitively on *138 the matter. For the above reasons, we hold that the definition of "child" in § 48.02(2) does not include a viable fetus. Because the court of appeals erroneously held that the § 48.02(2) definition of "child" includes a fetus, we reverse the decision of that court.

By the Court.—The decision of the