Cockrum v. Baumgartner

JUSTICE CLARK, dissenting:

This court today has come to the conclusion that child-rearing costs are not recoverable in a wrongful birth action in Illinois. The court relies primarily on what it sees as a necessary public policy posture in reaching the conclusion it does. However, I believe the court’s opinion is internally inconsistent, and I feel that, upon a careful examination, it mischaracterizes the issues without any substantive legal foundation upon which to build. The court inconsistently has said that the birth of a normal child cannot be judged to be an injury to parents and yet, at the beginning of the opinion, the court recognizes that a cause of action exists for wrongful birth in this State, and that plaintiffs can recover for the pain of childbirth, the time lost in having the child, and the medical expenses incurred. The court in effect has found that the birth of a normal child is recognized as an injury in “wrongful birth actions” in Illinois; the issue is what damages are recoverable as a result of that injury to the parénts. If, as the court hypothesizes, the birth of a normal child cannot be construed as an injury, how then can the plaintiff recover for the “pain” of childbirth? Should, then, the court characterize the time “lost in having the child” as “lost” time (which in effect is found to be compensable)? Why then allow for the medical costs of childbirth if they represent the first installment in an investment in the preservation and development of family relations? The opinion of the court contradicts itself. Once the court has agreed that the cause of action for wrongful birth can be brought in Illinois, the policy questions that the opinion grapples with are moot.

The court determines that while other jurisdictions have applied “mechanical logic” in reaching a different conclusion than this court does, such a result can only be reached “on the ground that human life and the state of parenthood are compensable losses.” (95 Ill. 2d at 200-01.) Are we then to assume that the courts in Pennsylvania (Mason v. Western Pennsylvania Hospital (1981), 286 Pa. Super. 354 , 428 A.2d 1366 ), Connecticut (Ochs v. Borrelli (1982), 187 Conn. 253 , 445 A.2d 883 ), Minnesota (Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169 ), and California (Stills v. Gratton (1976), 55 Cal. App. 3d 698 , 127 Cal. Rptr. 652 ), as well as the appellate courts of Michigan (Troppi v. Scarf (1971), 31 Mich. App. 240 , 187 N.W.2d 511 ), and of this State (Cockrum v. Baumgartner (1981), 99 Ill. App. 3d 271 , Pierce v. DeGracia (1982), 103 Ill. App. 3d 511 ) do not respect human life, because those courts find the foreseeable child-rearing expenses to be recoverable in a wrongful birth action? I believe the court has mischaracterized the issue in a most unfortunate and hyperbolic way. It is not at all that human life or the state of parenthood are inherently injurious; rather it is an unplanned parenthood and an unwanted birth, the cause of which is directly attributable to a physician’s negligence, for which the plaintiffs seek compensation.

Griswold v. Connecticut (1965), 381 U.S. 479 , 14 L. Ed. 2d 510 , 85 S. Ct. 1678 , and Roe v. Wade (1973), 410 U.S. 113 , 35 L. Ed. 2d 147 , 93 S. Ct. 705 , established that the right to limit procreation was a constitutionally protected right. The United States Supreme Court did not perceive any threat to the sanctity of life by recognizing that a married couple has the right to choose not to procreate. To deny child-rearing expenses effectively nullifies that right by severely impairing the remedy available to parents who, after choosing not to conceive a child, have found that due to a negligently performed vasectomy they are going to be parents. A couple’s decision not to have a child does not undermine the value of a human life. In allowing recovery for damages for child-rearing expenses, we would only be compensating parents for damages that naturally flow from the commission of the tortious act which this court has now recognized.

Nor should the parents be forced to mitigate damages by choosing abortion or adoption. They chose not to conceive a child. It is quite a different situation to ask a couple, once a child has been conceived, to abort, or to put the child up for adoption, indicating that if they failed to do either they would assume full responsibility of any and all costs of that child. If parents are confronted in such a situation with choices that they consider to be unenviable alternatives, they should not be precluded from recovering damages because they select the most desirable of these unpalatable choices. Kelley, Wrongful Life, Wrongful Birth, and Justice in Tort Law, 1979 Wash. U.L.Q. 919, 950; see, e.g., Troppi v. Scarf (1971), 31 Mich. App. 240 , 187 N.W.2d 511 ; Clapham v. Yanga (1980), 102 Mich. App. 47 , 300 N.W.2d 727 ; Sorkin v. Lee (1980), 78 A.D.2d 180 , 434 N.Y.S.2d 300 .

Once a breach of duty by a physician has been established, that tortfeasor must bear the responsibility for the consequences of that action. See Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169 .

It is certainly foreseeable that a physician’s failure to properly perform a vasectomy on a husband or failure to properly perform a bilateral tubal cauterization on a wife, would result in the woman’s giving birth to an unplanned child. It is also foreseeable that the parents would incur substantial expenses in raising and educating that child.

The court has reached the same result arrived at in the Florida case of Public Health Trust v. Brown (Fla. App. 1980), 388 So. 2d 1084 . The court quotes with approval from that Florida appellate court opinion, where it was said: “[I]t is a matter of universally-shared emotion and sentiment that the intangible but all important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved.” 388 So. 2d 1084, 1085-86 .

I feel such an assertion flies in face of the widespread use of contraceptives today. The court in Troppi v. Scarf (1971), 31 Mich. App. 240, 253 , 187 N.W.2d 511, 517 , realized that contraceptives “are used to prevent the birth of healthy children.” That appellate court in Michigan also recognized that “[t]o say that for reasons of public policy contraceptive failure can result in no damage as a matter of law ignores the fact that tens of millions of persons use contraceptives daily to avoid the very result which the defendant would have us say is always a benefit, never a detriment. Those tens of millions of persons, by their conduct, express the sense of the community.” ( 31 Mich. App. 240, 253 , 187 N.W.2d 511, 517 .) I believe that it is fair to say that many prospective parents use birth-control measures in deliberately attempting to avoid the expense of raising a child, because to many of them, at that point in time, the financial costs of feeding, clothing, sheltering and educating a child are prohibitive.

Certainly there are positive aspects to child rearing and enduring benefits to parenthood, but that does not mean, to me, that parents who take measures to prevent the conception of a child should be burdened with all of the expenses that go along with raising that child — expenses that they would not have incurred had it not been for the negligence of another.

I would also follow those other jurisdictions where child-rearing costs, while recoverable, are offset to a certain degree by the benefits of parenthood. (See Troppi v. Scarf (1971), 31 Mich. App. 240 , 187 N.W.2d 511 , Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169 .) Potential benefits, including companionship, that the parents may derive from that parent-child relationship should be considered by the trier of fact in determining the ultimate amount of damages. I do not believe that the many benefits of having a child should be excluded as a matter of law; nor do I feel that such benefits can be held to automatically offset all expenses. Plaintiffs who choose to rear this unplanned child should be allowed to recover for damages according to the degree of the injury. That will inevitably vary. I agree with what the court in Troppi v. Scarf (1971), 31 Mich. App. 240, 257 , 187 N.W.2d 511, 519 , said:

“The essential point, of course, is that the trier must have the power to evaluate the benefit according to all the circumstances of the case presented. Family size, family income, age of the parents, and marital status are some, but not all, the factors which the trier must consider in determining the extent to which the birth of a particular child represents a benefit to his parents. That the benefits so conferred and calculated will vary widely from case to case is inevitable.”

The Restatement (Second) of Torts indicates that if damages are to be reduced, the benefit conferred must be to the interest that was harmed:

“When the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.” (Restatement (Second) of Torts sec. 920, at 509 (1979).)

Thus the trier of fact can be in a more flexible position in determining what is the most equitable award. Application of the so-called “special benefits” rule is appropriate here, for as one commentator stated:

“Rigid categorization of interests is unnecessary and especially inappropriate in the wrongful birth context in which plaintiffs’ reasons for limiting family size are often multifaceted and complex.

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*** [While] [t]he process would be admittedly difficult for the judge to administer and would require the trier of fact to exercise utmost diligence in balancing benefits and burdens, [it is only through the balancing process that the court] insure[s] that damages are measured as accurately as possible.” Note, Tort Damages — Wrongful Birth, 1982 So. Ill. U.L.J. 111, 133-35.

While such a computation in offsetting the benefits that accrue to the parents against the expenses to be incurred is difficult, it is no more formidable a task than determining the amount of damages to be awarded for loss of consortium in a wrongful death action. See Elliott v. Willis (1982), Ill. 2d 530, 540.

In reaching the result arrived at today, I believe the court has taken a myopic view of prospective parents’ considerations. A couple privileged to be bringing home the combined income of a dual professional household may well be able to sustain and cherish an unexpected child. But I am not sure the child’s smile would be the most memorable characteristic to an indigent couple, where the husband underwent a vasectomy or the wife underwent a sterilization procedure, not because they did not desire a child, but rather because they faced the stark realization that they could not afford to feed an additional person, much less clothe, educate and support a child when that couple had trouble supporting one another. The choice is not always giving up personal amenities in order to buy a gift for the baby; the choice may only be to stretch necessities beyond the breaking point to provide for a child that the couple had purposely set out to avoid having. The court today expresses concern about putting a negative imprimatur on a child’s life and yet, in denying damages for child rearing, the court may well be accomplishing the very result it so seems intent on avoiding — making a child of an unwanted birth a victim of a very real continuing financial struggle and thus a painful reminder of the obligations of parenthood to a couple who had no appetite for a parental life-style. Does that child then become more wanted because this court has seen fit to deny foreseeable expenses in a case where a physician’s negligence is undisputed?

JUSTICE SIMON joins in this dissent.