. . ." It is undisputed that the disposition of this issue is controlled by the construction placed upon § 6-5-391 in Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973); and Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972). The parties disagree fundamentally, however, over the nature of the principle derived from this construction.

214 Ala. at 612, 108 So. at 567 (quoting Allaire v. St. Luke's Hosp., 184 Ill. 359, 368, 56 N.E. 638 (1900)). In Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972), this Court overruled Stanford insofar as it held that a prenatal injury afforded no basis for an action in damages, noting that in doing so Alabama would "join every other jurisdiction in recognizing such a cause of action." 289 Ala. at 54, 265 So. 2d at 596.

’ ” 214 Ala. at 612, 108 So. at 567 (quoting Allaire v. St. Luke's Hosp., 184 Ill. 359, 368, 56 N.E. 638 (1900)). In Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), this Court overruled Stanford insofar as it held that a prenatal injury afforded no basis for an action in damages, noting that in doing so Alabama would “join every other jurisdiction in recognizing such a cause of action.” 289 Ala. at 54, 265 So.2d at 596.

In the context of civil law, the legislature, the constitution, and this Court's decisions have collectively repealed the common law's prohibition on wrongful-death actions, § 6-5-391; protected the rights of the unborn, Ala. Const. 2022, Art. I, § 36.06(b) ("[I]t is the public policy of this state to ensure the protection of the rights of the unborn child ...."); and eliminated the common law's prohibition on seeking a civil remedy for injuries done to the unborn, Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), and Hamilton v. Scott, 97 So.3d 728 (Ala. 2012). If, after this, the common law does not allow wrongful-death actions for some unborn children when they are injured -- here, based on their physical location -that rule must be consistent with the Constitution, laws, and institutions of this state.

Although the Wrongful Death Act does not define "minor child," in Mack v. Carmack, 79 So.3d 597 (Ala. 2011), this Court held that the Wrongful Death Act permits an action for the death of a previable fetus. In reaching its decision in Mack, this Court overruled two prior cases, Gentry v. Gilmore, 613 So.2d 1241 (Ala. 1993), and Lollar v. Tankersley, 613 So.2d 1249, 1252 (Ala. 1993), decisions that had, in turn, limited a trio of prior decisions concerning causes of action for wrongful death based on prenatal injuries— Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974), Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973), and Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972). In overruling Gentry and Lollar, this Court in Mack considered the history of wrongful-death claims arising from prenatal injuries in Alabama, scholarly commentary, cases from other jurisdictions, and Alabama's Homicide Act, which, as noted, had been recently amended.

Giles v. Parker, 230 Ala. 119, 159 So. 826 (1935). Prior to 1972 there was no cause of action for prenatal injuries in Alabama of any kind, but in that year the Supreme Court in Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972) overruled the antiquated and discredited holding of Stanford v. Saint Louis and San Francisco Railway Company, 214 Ala. 611, 108 So. 566 (1926) which for so long had maintained its stronghold on this area of our state's law. In Huskey, the Court held that a cause of action did exist in Alabama for wrongful death of a viable seven and one-half month fetal child who was born alive five days after the accident but who lived for only five days.

The right thus conferred by the statute provides a remedy in certain factual situations in which the injury causing the death is inflicted before the child is born. This Court, in Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), considered whether a cause of action existed if the injury causing the death occurred before the child was born. In that case, this Court, following precedents from other jurisdictions, overruled Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926), and allowed an action for the death of a child who was born alive but who died of injuries allegedly suffered while still in his mother's womb, but while viable.

Rives, Peterson, Pettus, Conway Burge, Birmingham, for appellees. Failure of appellant to provide statement of the case required by Rule 9 is basis for affirmance. Copeland v. Crabtree, 44 Ala. App. 125, 203 So.2d 691, Id., 281 Ala. 718, 203 So.2d 692; Melton v. Jackson, 284 Ala. 253, 224 So.2d 611; Robison v. Robison, 280 Ala. 412, 194 So.2d 568; Reynolds v. Henson, 275 Ala. 435, 155 So.2d 600. Action for wrongful death of minor child is not available in Alabama where alleged injury occurred when fetus was not viable. Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Huskey v. Smith, 289 Ala. 52, 265 So.2d 596. Fetus becomes viable when it becomes potentially capable of living separate from the mother, usually at about seven months. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Cases relied upon by appellant hold only that personal injury action for pre-viability injury may be maintained by living child, and do not hold that wrongful death action may be based thereon.

Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 612, 108 So. 566, 566 (1926). Stanford was subsequently overruled, however, by Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972). In Huskey, our Supreme Court explained that " Stanford . . . was based upon the prevailing medical opinion of that day that a fetal child was a part of the mother and was not a `person' until it was born"; that a wrongful-death action based on prenatal injuries to a child who had reached the stage of viability was appropriate; and that "[t]o give further force to Stanford would give protection to an alleged tort-feasor."

Clark v. State, 117 Ala. 1 (1898). Morgan v. State, 148 Tenn. 417 (1923). See also Huskey v. Smith, 289 Ala. 52, 55 (1972); State v. Anderson 135 N.J. Super. 423, 427-428 (Law Div. 1975). Thus the law is not applied prospectively in this case.