Petition — Raja v. Michael Reese Hospital
Supreme Court brief1983
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RQ-7 od } Oifica- Supren me Court, U.S.
FILED
No. UL & 1963
oenrnDeN (. GrEvas
In the bea
Supreme Court of the United States
Ocroser Term, 1983
ae
——
DONNA COCKRUM and LEON COCKRUM,
vs.
DR. GEORGE BAUMGARTNER and UNKNOWN
LABORATORY,
Respondents.
and
EDNA RAJA and AFZAL RAJA,
Petitioners,
vs.
MICHAEL REESE HOSPITAL AND MEDICAL
CENTER,
Respondents.
ane -
a
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
AND APPENDIX
Lawrence M. FREEDMAN
SHetpon A. BrenNeER
James L. Guass, Jr.
77 West Washington Street
Chicago, Illinois 60602
Counsel for Petitioners,
Edna Raja and Afzal Raja
Asx, Anos, FreepMan & Logan
77 West Washington Street
Chicago, Illinois 60602
Of Counsel
The Scheffer Press, Inc.—(312) 263-6850
i
QUESTIONS PRESENTED
1. Whether the Illinois Supreme Court’s pronounce-
ment that, because of the State of Illinois’ articulated
policy against abortion, negligent physicians and hospi-
tals are excused from liability per se for certain damages,
including the cost of rearing and educating a child born
as a direct and proximate result of medical malpractice,
poses an unconstitutional burden on a potential parent’s
right to privacy and right to family plan without undue
gove: amental intrusion.
2. Whether a public policy pronouncement of the Illi-
nois Legislature, cited with approval by the state courts
of Illinois, which is in direct conflict with rights defined in
the United States Constitution, violates the Supremacy
Clause of the United States Constitution.
iij
INDEX
PETITION CONTENTS
PAGE
as seseenstiemanoenesisvsseesorerecvesvocerece i
a scineceactesovonevonenocgoreceene 2
EEE SES SET 2
a. casssnsnsomnevesancosveos 2
Constitutional Provisions Involved .....cscsssesseseeecsees 3
as chcnctnicecehenenesescccascseeccssoconsccees 4
RE ME EEE CIID WEEE ..cccscccccccccescccccscocccccosocsseece 7
Tc cnnndvemisssnbnanoceneccvovonscesoncocoers 23
APPENDIX CONTENTS
Order of the Circuit Court of Cook County, Illinois,
ILI (i ausdccssddacgieksnseteessesssepsebocencececce App. A, p. la
Decision of the Appellate Court of [llinois, July 2,
ais caesssiritensesreemnonsnaesicecnccessccoces App. B, p. 2a
Decision of the Supreme Court of Illinois, February
clea ocscenehpansnescetesaseeneceeersce App. C, p. 12a
Order of the Supreme Court of Illinois Denying Re-
RI, PUEEE G, BOE cscesceseccsecnscsncocccescssccesees App. D, p. 30a
TABLE OF CITATIONS
CASES
Akron vy. Akron Center for Reproductive Health, 43
SE ME ME TA, BO (ROGG) cccccsoreveccscccscosecnsccceee 11
Carey v. Population Services International, 431 US.
El atlichaeesasehiecomsensodoteosdnbscsserccssocsceccccevees 13
iv
PAGE
Cockrum v. Baumgartner, 447 N.E. 2d 385 (Ill. S. Ct.
BIB. sicscecsnctctessnnoneichavcsenievibeincimnsibacnsciieeteetectnanbabinabineeiiteaies 2,8
Cockrum v. Baumgartner, 99 Il. App. 3d 271, 425 N.E.
Se CD senencincesntininsveicesieciancsetidsineesionbiiionisnaintinaies 2
Colautti v. Franklin, 439 U.S. 379 (1979) ...ssccccseessesees 13
Custodio v. Bawer, 251 Cal. App. 2d 353, 59 Cal. Rptr.
CD CD ieertets tintaantetiaminiibinamanmninusnias 23
Doe v. Boulton, 410 U.S. 179 (1973) ...reccssesssssesseereeees 13
Eisenstadt v. Baird, 405 U.S. 438 (1972) ...ccccccsssesesees 11
Griswold v. Connecticut, 381 U.S. 479 (1965) .........4. 11
Kintz v. Harriger, 124 N.E. 168, 170 (Ohio 1919) .... 21
Planned Parenthood Association v. Ashcroft, 43 CCH
BE, Ce. BTL wa BORG (1G aeecncssctcccennsscscecscsecssonicncssseeze 11
Planned Parenthood of Central Missouri v. Danforth,
GD Te. CRE tecreiesststceriansciacnmmnnienins 13
Public Health Trust v. Brown, 388 So. 2d 1084 (Fla.
Dae FOOD sceneeneencisicioninsbabinntcinapiensdaliipsaniiattlinents 22
Rieck v. Medical Protective Company, 64 Wis. 2d 514,
ee eB OR | BE a ee emo 22
Roe v. Wade, 410 UB. 118 (1978) .ccrercnsccrcccscccssssssessces 11
Shapiro v. Thompson, 394 U.S. 618 (1971) cccccsseseeessees 12
Simopowlos vy. Virginia, 43 CCH §S. Ct. Bull. p. 3427
COED © sccssssionsbinctihestpissienechiteaepelodaenasampladenatininanieincmcunts 11
Speck v. Feingold, 439 A. 2d 110 (Pa. S. Ct. 1981),
affirming 268 Pa. Super. 342, 408 A. 2d 496 (1979) .. 19
Wilczynski v. Goodman, 73 Ill. App. 3d 51, 29 Ill. Dee.
— E £8 te Fk. Keene 16
v
STATUTES
PAGE
nS AIEEE, SERINE CIN ‘sioccincninicsit haiscneecsceasacheinennminicianenantoebiali 2
Illinois Abortion Act of 1975, Ill. Rev. Stat. (1977)
i WS TAU sei.ncdssdaasesrnsivscnensohanmeanataeiseianssiaininaslionisasal 5,17
Illinois Abortion Act of 1977 Til, Rev. Stat. (1979)
ae a, PE“ iiichteensiiciiasinetnai ab osaibindascecndiianibainiabibananiontinian 2
CONSTITUTIONAL PROVISIONS
U.S. Constitution, Amendment IX ou esesseeeeseeees 4,16
U.S. Constitution, Amendment VI, $2 wuss 4, 21
U.S. Constitution, Amendment XIV §1 wo..cceeseeseeees 3, 16
In THE
SUPREME COURT OF THE UNITED STATES
Ocroser Term, 1983
No.
——
DONNA COCKRUM and LEON COCKRUM,
vs.
DR. GEORGE BAUMGARTNER and UNKNOWN
LABORATORY,
Respondents.
and
EDNA RAJA and AFZAL RAJA,
Petitioners,
vs.
MICHAEL REESE HOSPITAL AND MEDICAL
CENTER,
Respondents.
— ——<—<——_—_— -——
— ——
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
Petitioners pray that a Writ of Certiorari issue to re-
view the Order of the Supreme Court of Illinois denying
a rehearing entered April 8, 1983.
a
OPINIONS BELOW
The order of the Supreme Court of Illinois, with re-
spect to which review is sought, denying a rehearing, is
unreported. It is printed in the Appendix hereto at App.
D. The opinion of the Supreme Court of Illinois with
respect to which the rehearing was denied is reported at
comaseans Tll.2d........... 447 N.E.2d 385. It is printed in the
Appendix hereto at App. C. The opinion of the Appel-
late Court of Illinois, which the Illinois Supreme Court
reversed, is reported at 99 Ill.App.3d 271, 425 N.E.2d
968. Said opinion is printed in the Appendix hereto at
App. B. The order of the Circuit Court of Cook County,
Illinois, from which appeal was taken and which was af-
firmed by the order of the Supreme Court of Illinois, is
not reported. It is also printed in the Appendix hereto
at App. A.
JURISDICTION
Jurisdiction is based on 28 U.S.C. §1257(3). The order
sought to be reviewed was entered April 8, 1983.
STATUTES INVOLVED
Ill, Rev. Stat. (1977), Chap. 38, §81-21: “Legislative
Intention.
It is the intention of the General Assembly of the
State of Illinois to reasonably regulate abortion in
conformance with the decisions of the United States
Supreme Court of January 22, 1973. Without in any
way restricting the right of privacy of a woman or
the right of a woman to an abortion under those de-
cisions, the General Assembly of the State of Illinois
do solemnly declare and find in reaffirmation of the
longstanding policy of this State, that the unborn
child is a human being from the time of conception
and is, therefore, a legal person for purposes of the
=
unborn child’s right to life and is entitled to the right
to life from conception under the laws and Constitu-
tion of this State. Further, the General Assembly
finds and declares that longstanding policy of this
State to protect the right to life of the unborn child
from conception by prohibiting abortion unless neces-
sary to preserve the life of the mother is impermis-
sible only because of the decisions of the United
States Supreme Court and that, therefore, if those
decisions of the United States Supreme Court are
ever reversed or modified or the United States Con-
stitution is amended to allow protection of the un-
born then the former policy of this State to prohibit
abortions unless necessary for the preservation of the
mother’s life shall be reinstated.”
Ill, Rev. Stat. (1979), Chap. 38, §81-21:
It is the further intention of the General Assembly
to assure and protect the woman’s health and the
integrity of the woman’s decision whether or not to
continue to bear a child, to protect the valid and
compelling State interest in the infant and unborn
child, to assure the integrity of marital and familial
relations and the rights and interests of persons who
participate in such relations, and to gather data for
establishing criteria for medical decisions. The Gen-
eral Assembly finds as fact, upon hearings and pub-
lie disclosures, that these rights and interests are
not secure in the economic and social context in which
abortion is presently performed.
CONSTITUTIONAL PROVISIONS
U.S. CONST., Amend. XIV §1
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shail any State deprive any
person of life, liberty or property, without due pro-
cess of law; nor deny to any person within its juris-
diction the equal protection of the laws,
—4—
U.S. CONST., Art. VI, 42.
This Constitution, and the laws of the United
States, which shall be made in pursuance thereof
shall be the supreme law of the land, and the judges
in every State shall be bound thereby, anything in
the constitution or laws of any State to the contrary
notwithstanding...
U.S. CONSTITUTION, Amend. IX
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.
STATEMENT OF THE CASE
The instant cases of Cockrum and Raja were con-
solidated by the Appellate Court of Illinois on appeal.
The complaint in Raja alleged a negligent failure to
diagnose the female plaintiff’s pregnancy. The complaint
in Cockrum alleged a negligent failure to perform a
proper vasectomy on the male plaintiff, both acts of
alleged malpractice resulting in the birth of unwanted
children. In both cases plaintiffs alleged that, but for
the negligence of the respective defendants, each of the
female plaintiffs would not have borne a child. In both
actions, plaintiffs sought to recover damages for the
pain of childbirth, the time lost in having the child, the
medical expenses involved, and the future expenses of
raising the children to majority. The trial court (the
Circuit Court of Cook County, Illinois) dismissed the
counts in both complaints seeking damages for future
expenses of raising the respective children, holding that
the public policy of the State of Illinois precluded the
recovery of such damages per se, notwithstanding the
extent of the defendants’ malpractice and notwithstand-
ing plaintiffs’ argument that such dismissals posed an
unconstitutional burden on plaintiffs’ fundamental right
to privacy, to limit procreation through contraception,
and to a limited extent, abortion. Separate appeals were
filed by both sets of plaintiffs.
After consolidation of both cases on appeal, the Appel-
late Court of Illinois issued its opinion reversing the
Circuit Court of Cook County, Illinois. The Appellate
Court of Lllinois rejected the rationale denying damages
based on the “right to life” statement of legislative intent
and public policy expressed by the Illinois legislature
in the Illinois Abortion Act of 1975, Ill, Rev. Stat. Chap.
38, 81-21 (1977).
The Appellate Court of Illinois, in its decision in the
instant case, recognized the fundamental right of parents
to control their reproductivity, and held that public policy
pronouncements of the state legislature, which were at
variance with the decisions of this Court, could not
properly be used to deny recovery for the full measure
of damages proximately caused by a physician’s or a
hospital’s negligence.
The Supreme Court of Illinois reversed the decision
of the Appellate Court of Illinois based upon the per-
ceived public policy of the Siate of Illinois to “protect
human life” and “develop and preserve family relations”.
In dissent, Mr. Justice Clark, of the Illinois Supreme
Court, criticized the majority’s rationale, reasoning that
decisions of this Court affirm Petitioners’ protected right
to choose not to procreate, and that this Court did not
perceive any threat to the sanctity of life in rendering
pr ies
those decisions, and that allowing recovery for all dam-
ages which proximately flow from a tortious interference
of this fundamental privacy right, is no more and no
less than the Constitution requires.
This petition follows in due course. The constitutional
issues involved in this petition were raised at each step
of the proceedings below.
a ee
REASONS FOR GRANTING THE WRIT
1,
THE ILLINOIS SUPREME COURT'S PRONOUNOE.
MENT, THAT TORTFEASORS CANNOT BE LIABLE
PER SE FOR CERTAIN DAMAGES ARISING OUT OF
MEDICAL MALPRACTICE WHEN A DIRECT RE.
SULT OF SUCH NEGLIGENCE IS THE BIRTH OF
AN UNPLANNED CHILD, POSES AN UNCONSTITU-
TIONAL BURDEN ON A WOMAN’S FUNDAMENTAL
RIGHT TO PRIVACY AND FREEDOM OF PERSONAL
CHOICE IN FAMILY PLANNING.
The Appellate Court of Illinois, in its decision which
was reversed by the Illinois Supreme Court, recognized
the fundamental right of parents to control their repro-
ductivity and held that public policy pronouncements
of the state legislature which were at variance with
the decisions of this Court could not properly be used
to deny recovery for the full measure of damages proxi-
mately caused by a physician’s or a hospital’s negligence.
As stated by the Appellate Court of Illinois at 425 N.E.
2d, 970:
‘“‘The defendants do not dispute the legal sufficiency
of the allegation that their negligence was the direct
and proximate cause of the expenses which the
plaintiffs seek to recover. Instead, they argue that
for reasons of public policy, damages should be
limited to pregnancy and birth related costs. The
defendants rely on Wilczynski v. Goodman (1979)
73 Tl.App.3d 51, 29 Ill.Dec, 216, 391 N.E.2d 479, for
the proposition that public policy deems the birth
of a healthy child a precious gift rather than a
compensable wrong.
While we agree that most parents hold the sentiment
that the birth of a healthy albeit unplanned child
is always a benefit, we are not inclined to raise this
sentiment to the level of public policy. The unique-
ness of life is in no way denigrated by a couple’s
choice not to have a child. Neither the individual
nor society as a whole is harmed by the exercise
of this choice. Recognizing this, the right to limit
procreation through contraception and, to a limited
extent abortion, has been held to come within a con-
stitutionally protected ‘zone of privacy.’ (Griswold
v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510; Roe v. Wade (1973), 410 U.S. 113,
93 S.Ct. 705, 35 L.Ed.2d 147.) Regardless of motiva-
tion, a couple has the right to determine whether
they will have a child. That right is legally pro-
tectible and need not be justified or explained. The
allowance of rearing costs is not an aspersion upon
the value of the child’s life. It is instead a recog-
nition of the importance of the parent’s fundamental
right to control their reproductivity. (See Comment,
Wrengful Life: Birth Control Spawns a Tort, 13
Joun Marshall L.Rev. 401, 420 (1980).) We cannot
endorse a view that effectively nullifies this right
by providing that its violation results in no injury.
For these reasons, we are not persuaded that public
policy considerations can properly be used to deny
recovery to parents of an unplanned child of the full
measure of all damages proximately caused by a
physician’s negligence.”
The Supreme Court of Illinois reversed the decision
of the Appellate Court of Illinois based upon the per-
ceived public policy of the State of Dlinois to “protect
human life” and “develop and preserve family relations”.
Cockrum, supra, 447 N.E.2d 385. Although the Supreme
Court of Illinois expressly recognized the existence of
the causes of action arising ont of the acts of malprac-
=
tice committed against the respective Plaintiffs in this
consolidated case, it limited the damages recoverable
by Petitioners per se, thus unconstitutionally burdening
the Plaintiffs’ fundamental privacy right to control pro-
creation and reproductivity under the guise of achieving
a supposedly desirable social result. In doing so, the
Illinois Supreme Court held that this Court’s decisions
in Roe v. Wade, swpra, and Griswold vy. Connecticut,
supra, were irrelevant to the issue of whether damages
could be recovered for the cost of raising and educating
the unplanned children of Plaintiffs, and rejected the
logic that the rule of damages in the instant malpractice
cases should be the same as that applied to non-birth
related malpractice actions, namely, that tortfeasors
shovld be held liable for all damages that they have
proximately caused as a result of a breach of duty owed
by them to plaintiffs in such actions.
The Illinois Supreme Court held that this general rule
of tort damages was “not suited to the circumstances
in this character of case.’’ 447 N.E.2d at page 390. As
stated by Mr. Justice Ward, speaking for the majority
of the Illinois Supreme Court:
“We do not perceive the relevance here of
Griswold vy. 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, cited
by the plaintiffs. In Griswold the court invalidated
a statute making the use of contraceptives an offense.
The court deemed that by outlawing the use of con-
traceptives the State unnecessarily invaded marital
privacy. In Roe, the court held that a woman’s right
to privacy is violated by a statute that prohibits
all abortions that are not necessary to preserve the
mother’s life,
_ oo
The decisions appear irrelevant to the issue of
whether damages may he recovered under the cireum-
stances here for expenses after the birth of the
child. The plaintiffs refer to these decisions in op-
posing considerations of public policy argued by the
defendants and relied upon by some of the decisions
we have cited. We would note that the plaintiffs
themselves, as we shall show, rely upon public policy.
We cannot on balance accept the plaintiffs’ con-
tention too that we should rigidly and unemotionally,
as they put it, apply the tort concept that a tort-
feasor should be liable for all of the costs he has
brought upon the plaintiffs.’’ 447 N.E.2d at page 390.
Mr. Justice Clark, however, in his dissenting opinion,
disputed the reasoning of the majority because it was
at variance with the opinions of this Court:
“Griswold vy. Connecticut (1965), 381 U.S. 479,
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, estab-
lished 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 par-
ents 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 compen-
sating parents for damages that naturally flow from
the commission of the tortious act which this court
has now recognized.’’ 447 N.E.2d at page 392. (Em-
phasis ours)
a, oo
The Court has made it clear in its decisions on repro-
ductive rights that the ‘‘liberty’’ protected by the Due
Process Clause of the Fourteenth Amendment includes
not only the freedoms explicitly mentioned in the Bill
of Rights, but also a freedom of personal choice in certain
matters of reprodution and family life. Griswold vy.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965); Hisenstadt v. Baird, 405 U.S. 488 (1972); and
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d
147 (1973), recently reaffirmed in Akron vy. Akron Center
For Reproductive Health, 43 CCH S.Ct. Bull. p. 3336;
Planned Parenthood Assn. vy. Asheroft, 43 CCH S.Ct.
Bull. p. 3394; and Simopoulos vy. Virginia, 43 CCH S.Ct.
Bull. p. 3427 (June 15, 1983).
In Griswold and Eisenstadt, the Court held that a
state statute proscribing the use or distribution of con-
traceptives was an unconstitutional intrusion upon a
citizen’s right of privacy and violated the Fifth and
Fourth Amendments to the Constitution as well as the
Equal Protection Clause of the Fourteenth Amendment
thereto. In Roe v. Wade, swpra, when confronted with
a state statute making it a crime to procure or attempt
an abortion except on medical advice for the purpose of
saving the mother’s life, the Court held that the implicit
constitutional liberty contained in the penumbra includes
the freedom of a woman to decide whether to terminate
her pregnancy, although a state does have a legitimate
interest during the pregnancy in both ensuring the health
of the mother and protecting the potential human life.
As stated by the Court in its recent pronouncement re-
affirming Roe:
“In Roe v. Wade, the Court held that the ‘right of
privacy, .. . founded in the Fourteenth Amendment’s
=
concept of personal liberty and restrictions upon
state action, ... is broad enough to encompass a
woman’s decision whether or not to terminate her
pregnancy.’ 410 U.S., at 153. Although the Constitu-
tion does not specifically identify this right, the
history of this Court’s constitutional adjudication
leaves no doubt that ‘the full scope of the liberty
guaranteed by the Due Process Clause cannot be
found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Con-
stitution.’ Poe v. Ullman, 367 U.S. 497, 543 (1961)
(Harlan, J., dissenting from dismissal of appeal).
Central among these protected liberties is an in-
dividual’s ‘freedom of personal choice in matters of
marriage and family life.’ Roe, 410 U.S., at 169
(Stewart, J., concurring). See, e.g., Eisenstadt v.
Baird, 405 U.S. 488 (1972); Loving v. Virginia, 388
U.S. 1 (1967); Griswold v. Conneticut, 381 U.S. 479
(1965); Pierce v. Society of Sisters, 268 U.S. 510
(1925) ; Meyer v. Nebraska, 262 U.S. 390 (1923). The
decision in Roe was based firmly on this long-
recognized and essential element of personal liberty.”
Akron vy. Akron Center For Reproductive Health,
supra, at pp. 3343-3344.
It is well settled that if a law impinges upon a funda-
mental right explicitly or implicitly secured by the con-
stitution, it is presumptively unconstitutional. Shapiro
v. Thompson, 394 U.S. 618, 634, 638 (1971); Jd., at 642-
644 (conurring opinion). Petitioners submit that the
instant decision of the Illinois Supreme Court, which
interferes with constitutionally protected activity by
arbitrarily limiting recoverable damages per se in a
medical malpractice action only because the result of
the tort was the birth of an unwanted child, imper-
missibly violates substantive privacy rights secured by
the constitution without serving any offsetting compelling
= 13
state interest, and is, therefore, unconstitutional and
should be reversed.
Despite this Court’s mandate in Roe v. Wade supra,
that in the first trimester of pregnancy the abortion
decision and its effectuation must be left to the medical
judgment of the physician in consultation with his
patient, the Illinois Supreme Court’s decision unconstitu-
tionally attempts to advance Illinois’ continuing anti-
abortion policy by placing an undue burden on a woman
seeking to exercise her fundamental right to choose
abortion without a showing of any compelling state
interest.
The obvious intent of the instant Illinois Supreme
Court decision is to restrict women from exercising their
rights by arbitrarily limiting damages per se in malprac-
tice actions against negligent physicians and hospitals,
merely because the tort committed results in either an
unwanted conception or birth.
In Roe v. Wade, supra, this Court established the
principle that the “right of privacy is broad enough to
encompass a woman’s decision whether or not to terminate
her pregnancy.” Jd. at Page 153. While recognizing that
some state regulation of areas protected by the right
to privacy are appropriate (e.g.: safeguarding health,
meeting medical standards, and protecting potential life),
the Court has set strict limits on the power of the state
to regulate abortions in promoting these legitimate state
interests. Id. at 154. Roe v. Wade, supra, Doe v. Boulton,
410 U.S. 179 (1973); Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976); Carey v. Popw
lation Services International, 431 U.S. 678 (1977); and
Colautti v. Franklin, 439 U.S. 379 (1979).
a vn
. The decision in Roe v. Wade, supra, sets forth a three-
tiered standard for analyzing abortion restrictions. For
the stage prior to the end of the first trimester the
abortion decision and its effectuation must be left to
the medical judgment of the patient’s attending phy-
sician. 410 U.S. at 163-164, 166. For the stage follow-
ing the first trimester, the state may, if it chooses,
regulate the abortion procedure in ways that are reason-
ably related to maternal health. 7d. at 163-165. For the
stage subsequent to viability, the state, in promoting
its interest in the potentiality of human life, may, if it
chooses, regulate and even proscribe abortion, except
where it is necessary, in appropriate medical judgment,
for the preservation of the life and health of the mother.
Id. at 163-165.
Because the constitutional right of privacy guarantees
independence in certain fundamental decisions, govern-
mental regulation of such decisions can only be justified
by the showing of a ‘‘compelling state interest’’. Roe
v. Wade, swpra, at page 155. Roe v. Wade, supra, and
its companion case, Doe v. Boulton, supra, also recognized
that some laws interfere with the effectuation of the abor-
tion decision. The same ‘‘compelling state interest’’ test
applies to restrictions on effectuation of abortion be-
cause they “substantially [limit] access to the means of
effectuating” the abortion decision.
In Carey v. Pogilation Services International, supra,
the Court struck down a New York criminal statute which
limited the sale and advertising of contraceptives. The
Court held that since the statute limited access to the
means of effectuating the contraception decision, it could
be justified only by a “ ‘compelling state interest’...
and must be narrowly drawn to express only the legiti-
—
mate state interest at stake.’’ Citing, Roe v. Wade, supra,
431 U.S. at p. 688. The Court found that the State of
New York could not meet its burden in proving that the
imposed restrictions promoted a compelling and legiti-
mate state interest.
Accordingly, regulations restricting abortion must be
viewed with strict judicial scrutiny. The restrictions
‘cannot be unduly burdensome ... and will be stricken
if the state has alternative, less intrusive means by which
it can effectuate its interest.’’ Carey v. Population
Services International, supra, at p. 686; Roe v. Wade
Supra.
Petitioners respectfully submit that there can be no
compelling state interest to the right to life where the
tortious act, such as negligent sterilization, occurs prior
to conception. Petitioners furthermore submit that there
is also no compelling state interest in the right to life
where the act of negligence, whether a misdiagnosis of
pregnancy or an improperly performed abortion, occurs
prior to the termination of the first trimester.
The instant decision of the Illinois Supreme Court
is unconstitutional since it totally ignores this Court’s
enunciation on reproductive rights, and, in effect, uncon-
stitutionally imposes a direct burden on the exercise of
a fundamental right of an individual to avoid or abort
a@ pregnancy.
As stated by Mr. Justice Clark in his dissent to the
Illinois Supreme Court opinion:
“The United States Supreme Court did not per-
ceive any threat to the sanctity of life by recognizing
that a married couple has a right to choose not to
procreate. To deny child-bearing expenses effectively
nullifies that right by severely impairing the remedy
available to parents who, after choosing not to con-
ceive 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 under-
mine the value of a human life. In allowing recovery
for damages for child-rearing expenses, we would
only be compensating parents for damages that na-
turally flow from the commission of the tortious
act which this Court has now recognized.’’ 447 N.E.
2d at 392.
THE PUBLIC POLICY PRONOUNCEMENT OF THE
ILLINOIS LEGISLATURE, CITED WITH APPROVAL
BY THE STATE COURTS OF ILLINOIS, IS IN DI-
RECT CONFLICT WITH THE UNITED STATES CON-
STITUTION AS INTERPRETED BY THIS COURT,
AND AS SUCH CANNOT BE USED TO SUSTAIN
THE POSITION TAKEN BY THE ILLINOIS S8vU-
PREME COURT.
This Court, in Roe v. Wade, swpra, and Griswold v.
Connecticut, supra, affirmed the constitutional guaran-
tees afforded Petitioners by the Ninth and Fourteenth
Amendments to the United State Constitution, which
clearly support the contention that public policy does
not require that Petitioners be barred from prosecuting
their claim for damages in this case. The majority opin-
ion of the Illinois Supreme Court cited with approval
the case of Wilczynski v. Goodman, 73 Ill.App.3d 51, 29
Il.Dec. 216, 391 N.E.2d 479 (1979), for the proposition
that Petitioners could not recover the expenses of rear-
ing a child born as a result of medical malpractice per
se because of the public policy of the State of Illinois
as articulated by the Illinois State Legislature in the
Illinois Abortion Act of 1975.
ome 17 an
Section 1 of the Illinois Abortion Act of 1975, ZU. Rev.
Stat. (1977), Chap. 38, §81-21, in effect at the time of the
issuance of the Wilceynski, supra, opinion provided as
follows:
“Legislative Intention
It is the intention of the General Assembly of the
State of Illinois to reasonably regulate abortion in
conformance with the decisions of the United States
Supreme Court of January 22, 1973. Without in any
way restricting the right of privacy of a woman or
the right of a woman to an abortion under those de-
cisions, the General Assembly of the State of Ili-
nois do solemnly declare and find in reaffirmation of
the longstanding policy of this State, that the unborn
child is a human being from the time of conception
and is, therefore, a legal person for purposes of the
unborn child’s right to life and is entitled to the
right to life from conception under the laws and
Constitution of this State. Further, the General As-
sembly finds and declares that longstanding policy of
this State to protect the right to life of the unborn
child from conception by prohibiting abortion unless
necessary to preserve the life of the mother is im-
permissible only because of the decisions of the
United States Supreme Court and that, therefore,
if those decisions of the United States Supreme Court
are ever reversed or modified or the United States
Constitution is amended to allow protection of the
unborn then the former policy of this State to pro-
hibit abortions unless necessary for the preservation
of the mother’s life shall be reinstated.”
*Shortly after the Illinois Appellate Court rendered
its decision in Wilczynski, supra, the Illinois General As-
sembly amended §1 of the Illinois Abortion Act to add the
following additional lan
“Tt is the further Saeotion of the General Assembly
to assure and protect the woman’s health and the
we
Afte» citing the aforesaid provisions of the Illinois Abor-
tion Law of 1975, the Wilczynski court stated:
“In our judgment, a public policy which deems pre-
cious even potential life while yet in the womb, at
such cost and expense that condition may entail, does
not countenance as compensable damage to its par-
ent or parents those additional costs and expenses
necessary to sustain and nurture that life once it
comes to fruition upon and after successful birth.”
29 Ill. Dec. at page 224.
The Illinois Supreme Court in Cockrum specifically cited
the reasoning of Wilczynski with approval in denying
Petitioners right to recover the damages sought herein.
447 N.E.2d at 389.
The Illinois Legislature’s pronouncement on public poli-
cy, as perceived in Wilczynski, was rejected by courts in
numerous jurisdictions prior to the Illinois Supreme
Court decision in Cockrum. In the Illinois Appellate
* (Continued)
integrity of the woman’s decision whether or not to
continue to bear a child, to protect the valid and
compelling State interest in the infant and unborn
child, to assure the integrity of marital and familial
relations and the rights and interests of persons who
participate in such relations, and to gather data for
establishing criteria for medical decisions. The Gen-
eral Assembly finds as fact, upon hearings and public
disclosures, that these rights and interests are not
secure in the economic and social context in which
abortion is presently performed.”
Notwithstanding this additional language, however, the
language contained in the act prior to amendment declar-
ing that an unborn child is a human being at the time
of conception and is therefore entitled to a right to life
and further taking issue with the decisions of this Court,
was not deleted from the Act.
—
Court decision in Cockrum, swpra, Justice Linn in his con-
curring opinion stated:
“. . . to raise, as was done in Wilczynski, questions
of ethics, morality, and so-called ‘pro-life’ has no
place in a case concerning whether a physician should
be liable for negligence and suggests that emotion
rather than reasoning can be used to determine the
issue ... The only real issue is one of compensable
damages and this question must be determined with-
out indulging in philosophical or religious non-is-
sues .. .” 425 N.E.2d at 971.
The Pennsylvania Supreme Court in the case of Speck
v. Finegold, 439 A.2d 110 (Pa. S. Ct. 1981), affirming, 268
Pa. Super. 342, 408 A.2d 496 (1979), held that the plain-
tiff could maintain an action in tort for expenses attri-
butable to the birth and raising of an infant born as a
result of a negligently performed vesectomy and negli-
gently performed abortion and rejected the public policy
argument relied upon in the Wilczynski opinion and stated
as follows:
“There is a view, of course, that no duty of care
shall extend from the doctor to the patient in a case
involving damages alleged as a result of the birth
of an unplanned child. One argument against the
parents’ right to bring an action is that because the
public policy of the Commonwealth favors birth
over abortion . . . the approval of such a cause of
action is in contravention of a legislatively declared
policy. This argument cannot prevail for several
reasons. Firstly, recognition of a cause of action in
the circumstances of this case simply has no impact
on whether abortions are performed in the Common-
wealth; it neither advances nor impedes abortion ac-
tivity, and therefore cannot be said to be in conflict
with a public policy which favors child birth over
—2—
abortion. Rather, the recognition of such causes of
action would merely accord injuries received as a
result of negligently performed sterilization or abor-
tion procedures the same legal protection accorded
any other negligently performed medical procedure.
Secondly, reliance on the Commonwealth public poli-
cy favoring birth over abortion to defeat plaintiff’s
cause of action cannot succeed because it squarely
conflicts with the plaintiff’s constitutional rights as
articulated in Roe v. Wade, 410 U.S.113, 93 S. Ct. 705,
35 L.Ed. 2d 147 (1973), to seek a termination of
pregnancy under certain circumstances. Were the
plaintiff merely free to seek the abortion but unable
to seek a remedy at law for injuries consequent upon
the negligent performance of that abortion, the right
would be hollow indeed. [Footnote omitted.]
Thirdly, were no duty of care imposed upon physi-
cians in the context of this case, and were no cause
of action permitted, there would be a frustration of
the fundamental policies of tort law in the Common-
wealth: to compensate the victim, deter negligence,
and encourage due care. Thus, in Ayala vy. Philadel-
phia Board of Public Education, 453 Pa. 584, 599,
305 A.2d 877, 884 (1973), this Court, quoting Dean
Prosser, stated:
“The “prophylactic’ factor of preventing future
harm has been quite important in the field of
torts. The courts are concerned not only with
compensation of the victim, but with admonition
of the wrongdoer. When the decision of the
courts become known, and defendants realize that
they may be held liable, there is of course a
strong incentive to prevent the occurrence of the
harm. Not infrequently one reason for imposing
liability is the deliberate purpose of providing
that incentive.”
See also, Flagiello v. Penna. Hospital, 417 Pa. 486, 505,
208 A.2d 193, 202 (1965).
=
If it is the case, as alleged in plaintiffs’ suit, that
they have been substantially injured by the defen-
dants’ negligence, to deny plaintiffs even the oppor-
tunity to present their case in a court would be to
grant an unjustifiable and unfair windfall to the de-
fendants, who would escape liability for the harm
resulting from their alleged negligence . . .” 439 A.2d
110 at 114-15.
The Supremacy Clause of the United States Constitu-
tion provides:
“This Constitution, and the laws of the United States,
which shall be made in pursuance thereof . . . shall
be the supreme law of the land, and the judges in
every State shall be bound thereby, anything in the
constitution or laws of any State to the contrary
notwithstanding .. .” U.S. CONST., Art. VI, §2.
Accordingly, neither the General Assembly of the State
of Illinois, nor the courts of the State of Illinois, has the
right to declare any public policy that clearly contravenes
or nullifies the rights declared in the federal Constitu-
tion. 16 Am. Jur. 2d Constitutional Law, $70 at page 392;
Kintz v. Harriger, 124 N.E. 168, 170 (Ohio, 1919).
Petitioners submit that the so-called “right to life” po-
sition asserted by the Illinois Legislature, which was en-
dorsed with approval by the courts of the State of Dlinois
in the Illinois Appellate Court decision in Wilczynski,
supra, and in the Illinois Supreme Court decision in Cock-
rum, supra, clearly violates the standards set down by
this Court in Roe v. Wade, supra and Griswold v. Con
necticut, supra, in that said supposed public policy seeks
to interfere with Petitioners’ freedom of choice in family
planning and their right to effectuate conception and abor-
=
tion, both at the respective stages prior to conception as
well as prior to the termination of the first trimester.
Because the Illinois Supreme Court decision in Cock-
rum, supra, is based solely on inhibiting implementation
of Petitioner’s sterilization or pre-viability abortion de-
cision, it must fail in its entirety.
There is clearly no compelling state interest in the so-
called “right to life” where the negligent act of a physi-
cian or hospital occurs either prior to conception or prior
to viability. Accordingly, the decision of the Illinois Su-
preme Court must be reversed.*
*The majority opinion of the [Illinois Supreme Court
in Cockrum, supra, also buttressed its opinion on the sup-
posed public policy considerations of preserving family
relations, citing cases such as Rieck v. Medical Protective
Company, 64 Wis. 2d 514, 219 N.E.2d 242 (1974), and
Public Health Trust v. Brown, (Fla. App. 1980) 388 So.
2d 1084, for the proposition that a child may suffer emo-
tionally if he discovers that he was unwanted, which
would be the supposed result where causes of action such
as the instant one, are allowed to proceed to recovery
of full damages.
This stigmatization argument has been rejected on the
basis that the speculative emotional injury that the child
might suffer clearly does not justify precluding recovery
per se. As stated by the Illinois Appellate Court in Cock-
rum, supra:
“Regardless of motivation, a couple has the right to
determine whether they will have the child. That
right is legally protectible and need not be justified
or explained. The allowance of rearing costs is not
an aspersion upon the value of the child’s life. It is
instead a recognition of the importance of the par-
ents’ fundamental right to control their reproduc-
tivity. (See, Comment, Wrongful Birth: Birth Con-
trol Spawns a Tort, 13 John Marshall L. Rev. 401,
420 (1980)). We cannot endorse a view that effec-
—
CONCLUSION
The decision of the Illinois Supreme Court totally
ignores this Court’s decisions on reproductive rights and
unconstitutionally imposes a direct burden on the exer-
cise of Petitioners’ fundamental rights with respect to
privacy and family planning. Based upon a provincial
legislative pronouncement of public policy, explicitly at
variance with the decisions of this Court, the Illinois Su-
preme Court has elected to carve out defenses, per se,
to certain acts of medical malpractice, where the result
of such negligence is the birth of a child. The effect of
this decision is to severely limit Petitioners’ rights to ef-
fectuate the family planning decisions which this Court
? (Continued)
tively nullifies this right by providing that its viola-
tion results in no injury. For these reasons, we are
persuaded that public policy considerations cannot
properly be used to deny recovery to parents of an
unplanned child of the full measure of all damages
proximately caused by a physician’s negligence.” 425
N.E. 2d at 968.
See also the decision of the California Court of Appeals
in Custodio v. Bauer, 251 Cal. App.2d 353, 59 Cal. Rptr.
463 (1967) which held, where a couple’s tenth child was
born after the failure of a tubal ligation:
“One cannot categorically say whether the tenth ar-
rival in the [plaintiff’s] family will be more emo-
tionally upset if he arrives in an environment where
each of the other members of the family must con-
tribute to his support, or whether he will have a hap-
pier or more well-adjusted life if he brings with him
the wherewithal to make it possible.” 59 Cal. Rptr.
at 477.
a
has held to be their constitutional right to exercise, while
creating a special privileged area of medical malpractice
in the process.
For the above and foregoing reasons, it is respectfully
requested that a writ of certiorari issue to review the
judgment and opinion of the Supreme Court of Illinois.
Respectfully submitted,
Lawrence M. FREEDMAN
SHELDON A. BRENNER
James L. Guass, Jr.
77 West Washington Street
Chicago, Illinois 60602
Counsel for Petitioners,
Edna Raja and Afzal Raja
Asn, Anos, FrnuepMan & Locan
77 West Washington Street
Chicago, Illinois 60602
Of Counsel
a la —
APPENDIX A
IN THE
CIRCUIT COURT OF COOK COUNTY, ILLINOIS
EDNA RAJA and AFZAL RAJA,
Plaintiffs,
v.
DR. A. TULSKY and MICHAEL REESE HOSPITAL
AND MEDICAL CENTER,
Defendants.
ORDER
This matter coming on to be heard on defendant,
Michael Reese Hospital’s motion to dismiss Count IV
of plaintiffs’ complaint, due notice having been given,
and the court being fully advised in the premises;
IT IS HEREBY ORDERED that defendant’s motion
is granted and Count IV of plaintiffs’ complaint is dis-
missed pursuant to the holding announced in Wilczynski
v. Goodman, 371 NE 2d 479 (1979). There is no just
reason for delay in the enforcement or appeal of this
order. This order is final and appealable.
/s/ Louis Giliberto, Judge,
March 27, 1980
a
APPENDIX B
Fourth Division
Filed July 2, 1981
80-1245 )
) Cons.
80-1300 )
DONNA COCKRUM and LEON COCKRUM,
Plaintiffs-Appellants,
vs.
DR. GEORGE BAUMGARTNER and
UNKNOWN LABORATORY,
Defendants-A ppellees.
and
EDNA RAJA (formerly known as EDNA ACKER) and
AFZAL RAJA,
Plaintiffs-A ppellants,
vs.
DR. A. TULSKY,
Defendant,
and
MICHAEL REESE HOSPITAL AND MEDICAL
CENTER, a Corporation,
Defendant-Appellee.
Appeal from the Circuit Court of Cook County
Honorable Louis J. Giliberto, Presiding.
sania SO sa
Mr JUSTICE JIGANTI delivered the opinion of the
court:
The question raised by these two cases, consolidated
on appeal, is whether the parents of a healthy child born
as a result of a negligently performed sterilization opera-
tion may recover as an element of damages the expenses
of raising and educating the child.
In Cockrum v. Baumgartner, the defendant physician
attempted to perform a vasectomy upon the plaintiff,
Leon Cockrum. The plaintiff returned for a sperm test
one month later and was informed by the defendant that
the operation was successful. Approximately six weeks
after the date of the test, Donna Cockrum learned that
she was pregnant. The defendant then performed another
sperm test upon Leon Cockrum and detected the presence
of live sperm cells. Donna and Leon Cockrum subse-
quently became the parents of a healthy boy. They
brought this action against the defendant seeking to
recover, among other things, the expenses of raising and
educating the child.
In Raja v. Tulsky, Dr. Tulsky performed a bilateral
tubal cauterization upon the plaintiff, Edna Raja, which
was intended to render her sterile. Approximately five
years later, Edna Raja began to experience indications
of pregnancy and went to the Michael Reese Gynecology
Clinic for an examination. She was informed that she
was not pregnant. Two months later, after experiencing
additional symptoms of pregnancy, Edna Raja returned
to the clinic for another examination. She was advised that
she was in the advanced stages of pregnancy and that it
was no longer medically safe for her to terminate the
pregnancy. She subsequently gave birth to a healthy
girl. Edna Raja and her husband, Afzal Raja, brought
an action against Dr. Tulsky and Michael Reese Hospital.
The counts against Dr. Tulsky were dismissed as barred
by the statute of limitations and are not pertinent to this
appeal. The action against Michael Reese Hospital was
— 4g —
based upon the negligent diagnosis of Edna Raja’s con-
dition, resulting in her inability to safely terminate her
pregnancy. One element of damages sought by the plain-
tiffs was compensation for the expenses of raising and
educating the child.
In both causes, th terial court dismissed the counts
seeking compensation for the expenses of raising and edu-
eating the child. The dismissals were based on Wilczyn-
ski v. Goodman (1979), 73 Ill. App. 3d 51, 391 N.E. 2d
479 where the court denied recovery for those elements
of damages.
Ethical and moral considerations aside, the cause be-
fore us is analytically indistinguishable from an ordinary
medical malpractice action. The essential elements of tort
liability ure alleged. The plaintiffs have alleged that be-
cause of the defendants’ breach of duty to properly treat
and advise them, they will be required to incur the ex-
penses of rearing the unplanned child. According to tradi-
tional tort principles, once these allegations of duty,
breach of duty and proximate cause are proven, the tort-
feasor is liable for all damages which ordinarily and in
the natural course of things flow from the commission of
the tort. (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d
368, 413 N.E. 2d 47.) The standard measure of damages
in tort thus seeks to place injured plaintiffs in the posi-
tion that they would have been in had no wrong occurred.
Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316.
The defendants do not dispute the legal sufficiency of
the allegation that their negligence was the direct and
proximate cause of the expenses which the plaintiffs seek
to recover. Instead, they argue that for reasons of public
policy, damages should be limited to pregnancy and birth
related costs. The defendants rely on Wilczynski v. Good-
mam (1979), 73 Ill. App. 3d 51, 391 N.E.2d 479, for the
proposition that public policy deems the birth of a
healthy child a precious gift rather than a compensable
wrong.
stallion
While we agree that most parents hold the sentiment
that the birth of a healthy albeit unplanned child is al-
ways a benefit, we are not inclined to raise this sentiment
to the level of public policy. The uniqueness of life is in
no way denigrated by a couple’s choice not to have a
child. Neither the individual nor society as a whole is
harmed by the exercise of this choice. Recognizing this,
the right to limit procreation through contraception and,
to a limited extent abortion, has been held to come within
a constitutionally protected “zone of privacy.’’ (Griswold
v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85
S. Ct. 1678; Roe v. Wade (1973), 410 U. S. 113, 35 L. Ed.
2d 147, 93 S. Ct. 705.) Regardless of motivation, a couple
has the right to determine whether they will have a child.
That right is legally protectible and need not be justified
or explained. The allowance of rearing costs is not an
aspersion upon the value of the child’s life. It is instead
a recognition of the importance of the parent’s funda-
mental right to control their reproductivity. (See Com-
ment, Wrongful Life: Birth Control Spawns a Tort, 13
John Marshall L. Rev. 401, 420 (1980).) We cannot en-
dorse a view that effectively nullifies this right by pro-
viding that its violation results in no injury. For these
reasons, we are not persuaded that public policy conside-
rations can porperly be used to deny recovery to parents
of an unplanned child of the full measure of all damages
proximately caused by a physician’s negligence.
Several courts which have allowed rearing costs as a
proper element of damages have permitted the defendant
to show that the plaintiff’s financial injury has been 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.) In doing so, these courts have relied primarily
upon the so-called “benefits rule” found in section 920
of the Restatement of Torts, which provides:
‘When the defendant’s tortious conduct has caused
harm to the plaintiff or to his property and in so
a= 6g, ===
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 dam-
ages, to the extent that this is equitable.” (Restate-
ment (Second) Torts, §920 at 509 (1979).) (Empha-
sis added.)
To the extent that this section has been used to permit
the emotional rewards of parenthood to offset its finan-
cial costs, we believe it has been misapplied. Section 920
clearly provides that a benefit to the plaintiff caused
by the defendant’s tortious act may be considered in miti-
gation of the plaintiff’s injury only where the benefit is
to the same interest which was harmed. The rewards of
parenthood should not be allowed in mitigation of rear-
ing costs because “these rewards are emotional in nature
and, great though they may be, do nothing whatever to
benefit the plaintiff’s injured financial interest.” Kashi,
The Case of the Unwanted Blessing: Wrongful Life, 31
U. of Miami L, Rev. 1409, 1415 (1977).
It has been suggested that parents who seek to recover
the costs of raising and educating an unplanned child
should be required to mitigate damages through abortion
or adoption. It is accepted, however, that the doctrine
of mitigation requires only that reasonable measures be
taken :
“Tf the effort, risk, sacrifice, or expense which the
person wronged must incur in order to avoid or mini-
mize a loss or injury is such that under all the
circumstances a reasonable man might well decline
to incur it, a failure to do so imposes no disability
against recovering full damages.” (McCormick, Dam-
ages §35 at 133 (1935).
The decision not to conceive a child is totally distinguish-
able from the decision to abort or place for adoption a
child who is already conceived. We do not believe it is
reasonable for a defendant to require the parents of an
unplanned child to consider abortion or adoption. These
== 7g, ==
alternatives are uniquely personal choices which cannot
be forced upon parents as a means of mitigating damages.
In expressing our conclusion that the cost of raising
and educating an unplanned child is a proper element of
damages, we are aware that another division of this
court reached a different result in Wilczynski v. Goodman
(1979), 73 Ill. App. 3d 51, 391 N.E.2d 479. In Wilczynski,
the court recognized that the parents of a child born as a
proximate result of a negligently performed abortion
could bring a negligence action against the physician.
However, recoverable damages were limited to pregnancy
and birth related costs. The court denied recovery of
rearing costs based on its view that the public policy
of this State as expressed in section 1 of the Illinois Abor-
tion Act (III. Rev. Stat. 1977, ch. 38, par. 81-21) regards
the birth of a healthy child as an “esteemed right” rather
than a compensable wrong. (Wilczynski at 62, 391 N.E.2d
ate 487.) As previously stated, we do not believe that this
interpretation of public policy can properly be used to
deny recovery of the full measure of damages caused by
the defendant’s negligence. To the extent that Wilezynski
disallows these costs, we disagree with that opinion.
For the foregoing reasons, the judgments of the cir-
cuit court are reversed.
Reversed.
Mr. Justice Linn, specially concurring:
I agree that parents should be able to seek compensa-
tion for the costs of raising and educating a healthy child
in cases such as the present ones. In doing so, I recog:
nize that the decision reached today contradicts a previ-
ous decision from another division of this court. Though
normally I would feel compelled to follow recent decisions
from other divisions of this court, I cannot in good con-
science accept either the reasoning or the result of the
opinion in Wilczynski v. Goodman (1979), 73 Ill. App. 3d
51, 391 N.E.2d 479, as far as it determined that parents
a
could not seek compensation for the costs of rearing a
healthy child when a physician’s negligence in performing
a legal abortion caused the child to be born.
The reasoning relied upon by the court in Wilczynski
was that such compensation would violate a supposed
public policy which considers all abortion wrong, regard-
less of the actual law, and thus considers life to be an
“esteemed right” rather than a compensable wrong. (78
Ill. App. 3d 51, 62, 391 N.E.2d 479, 487.) Though such
reasoning may be applicable to whether the unwanted
healthy child could state a cause of action against the
physician on his own behalf, it has no application to
whether the parents should recover damages for the in-
jury to their rights. Even assuming life is an “esteemed
right’’ and one’s life is precious to oneself, it does not
follow that one’s existence automatically confers a bene-
fit and no burden on those having a duty to assure one’s
life is preserved throughout childhood.
Additionally, to raise, as was done in Wilczynski, ques-
tions of ethics, morality, and so-called “pro-life” has no
place in a case concerning whether a physician should be
liable for his negligence and suggests that emotion rather
than reasoning can be used to determine the issue. The
only real issue is one of compensable damages and this
question must be determined without indulging in philo-
sophical or religious non-issues.
Though I agree that the parents should be allowed to
seek compensation for the costs of rearing a healthy
child, I cannot agree with the conclusion that the benefits
the parents may derive from the parent-child relation-
ship should be ignored in determining the amount of dam-
ages. My fellow Justice believes that such benefits can-
not be considered because no special benefit has been
conferred on the interest that has been harmed — the
right of the parents to choose whether they will have a
child. However, I think that this narrow application of
the “special benefits” rule will create inequitable results
= 9g —
because it presumes that the injury done to the parents’
interests is the same in all cases. One must recognize
that the reasons parents have for practicing birth control
vary and any injury done to their interests as parents
will be different in each case. Can it be said that parents
in their twenties who merely wanted to postpone having
a child will suffer the same degree of injury from a phy-
sician’s negligence in causing a child to be born as will
parents in their forties who already have grown children
and have decided not to undergo the burden of raising any
more children? Damages should be awarded based on the
degree of injury that has occurred, and by allowing the
potential benefits that the parents may derive from the
parent-child relationship to be considered as one factor
in determining the amount of damages will result in re-
dressing the degree of injury that has been caused.
Thus, I believe the proper rule to be that any potential
benefits that the parents may derive from the parent-
child relationship, whether they be in the form of com-
panionship, the possibility of future financial support, or
otherwise, should be one factor the trier of fact should
be allowed to consider in determining the amount of dam-
ages. The injury done by a physician’s negligence is, in
effect, an injury done to the parents’ overall “family in-
terests” and the benefits that may be derived are benefits
to those “family interests.” Accord, Troppi v. Scarf
(1971), 31 Mich. App. 240, 187 N.W.2d 511.
However, this does not mean that I agreed with the
defendants’ argument that in all cases the parents will
be expected to derive such an overwhelming emotional
benefit from having a healthy child that damages should
be nominal, if anything, as a matter of law. Whether
there will be any benefits and the value of any possible
benefits are not issues of law. Each case depends on its
own facts. Poor parents with many children may actual-
ly be expected to derive more stress than pleasure from
having an additional child. Older parents who have chos-
en not to have any more children may not be expected
— ean
to derive the same degree of benefit from having an ad-
ditional child as younger parents who have chosen mere-
ly to postpone having a child. The trier of fact should
be allowed to consider many factors, including family
size, family income, the age of the parents, and marital
status, to determine the existence or value of any poten-
tial benefits. Troppi v. Scarf (1971), 31 Mich. App. 240,
187 N.W.2d 511.
Finally, I admit that the determination of the exist-
ence or value of any possible benefits involves a degree
of speculation, but I do not see how allowing the trier of
fact to make the determination will result in any more
speculation than when the trier of fact is presently called
upon to determine the existence or value of pain and suf-
fering in personal injury cases, of severe emotional dis-
tress in cases of intentional infliction of emotional dis-
tress, or of companionship in loss o! consortium cases.
Accordingly, I coneur in the decision of this court as
far as it allows the parents to seek compensation for the
costs of raising a healthy child in cases such as the pres-
ent ones, but I would allow any possible benefits the par-
ents may derive from the parent-child relationship to be
one factor a trier of fact may consider in determining
the amount of damages.
MR. PRESIDING JUSTICE ROMITI,
SPECIALLY CONCURRING:
I too join with Justice Jiganti in his determination
that the plaintiffs in these cases are entitled to seek
recovery for the expenses of raising and educating the
unplanned children which they allege were the result of
defendant’s negligence. However I also join with Justice
Linn but only to the extent of finding that the offsetting
benefits plaintiffs may derive from having these un-
planned children should neither be excluded as a matter
of law from the calculation of damages nor should they
be held to automatically offset all damages. As was stated
in Tropm v. Scarf (1971), 31 Mich. App. 240, 256-57, 187
N.W.2d 511, 518-19:
—lla—
* * * * we believe [the special benefits] rule to be es-
sential to the rational disposition of this case and the
others that are sure to follow.
e o oe
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.’’
Allowing the application of the special benefits rule in
these cases will grant the trier of fact a degree of flexi-
bility in calculating damages which should result in more
equitable awards, a goal expressed in the very terms of
the rule.
_—
APPENDIX C
Docket No. 55733—Agenda 22—September 1982.
DONNA COCKRUM et al., Appellees, v. GEORGE
BAUMGARTNER et al., Appellants—EDNA RAJA
et al., Appellees, v. A. TULSKY et al. (Michael Reese
Hospital and Medical Center, Appellant).
JUSTICE WARD delivered the opinion of the court:
This appeal concerns the extent of the damages that
may be recovered in a malpractice action based on a so-
called “wrongful pregnancy” or “wrongful birth.” The
issue was raised in two medical malpractice suits that
were consolidated on appeal from the circuit court of
Cook County to the appellate court. In both cases, the
plaintiffs had alleged that but for the negligence of the
defendants each of the female plaintiffs would not have
borne a child. In both actions, the plaintiffs sought to
recover for the pain of childbirth, the time lost in having
the child, and the medical expenses involved. The plain-
tiffs sought also to recover as damages the future ex-
penses of raising the children, who, it would appear, are
healthy and normal. The circuit court dismissed the
counts that set out the claims for the expenses of rearing
the children. The plaintiffs appealed, and the appellate
court reversed those judgments. (99 Ill. App. 3d 271.)
We granted the defendants leave to appeal under Rule
315 (73 Ill. 2d R. 315).
Both suits were filed in the cireuit court of Cook Coun-
ty. Cockrum v. Baumgartner was brought by Donna and
Leon Cockrum against Dr. George Baumgartner and a
laboratory that performed tests according to Dr. Baum-
gartner’s instructions. The Cockrums alleged that Dr.
Baumgartner negligently performed a vasectomy upon
Leon Cockrum. Also, they claimed that he was negligent
in telling them that a sperm test conducted by the labora-
aaa A sion
tory showed no live sperm when he should have known
that the laboratory report showed that the vasectomy had
been medically unsuccessful. The Cockrums also alleged
that after the attempted vasectomy Donna Cockrum be-
came pregnant and gave birth to a child, and they claimed
that she would not have become pregnant if the physi-
cian had not been negligent.
In Raja v. Tulsky, Edna and Afzal Raja brought an
action against Dr. A. Tulsky and Michael Reese Hospital
and Medical Center. The Rajas alleged that Dr. Tulsky
negligently performed a bilateral tubal cauterization upon
Edna Raja, which operation was designed to make her
sterile. They alleged that about five years after the opera-
tion Edna Raja began to experience signs of pregnancy.
She was examined at Michael Reese’s gynecology clinic
and advised, however, that she was not pregnant. Later,
after the time in which the plaintiffs say it was medically
safe to have an abortion, she learned that she was in fact
pregnant. Edna Raja alleged that she suffers from hyper-
tensive cardiac disease, and that she had been informed
that it would be medically dangerous for her to have a
child. The Rajas claim that Michael Reese was negligent
in failing to determine that she was pregnant. They say
that if Michael Reese had told her that she was pregnant,
she would have elected to terminate the pregnancy. Those
counts in which Dr. Tulsky was named as a defendant
were dismissed as barred by the statute of limitations and
are not at issue here.
The Rajas and the Cockrum each gave birth to a child,
and there is no indication that the children are other than
normal and healthy. The only issue is whether the trial
court erred in dismissing the counts in which the plain-
tiffs sought to recover as damages the future expenses
of rearing the child.
As we have stated, the appellate court held that such
expenses are recoverable. The members of the panel in
the appellate court disagreed, however, in one respect. Two
— l4a —
of the three judges believed that in determining damages
the trier of fact should be permitted to consider the bene-
fits the plaintiffs receive from the parent-child relation-
ship. (99 Ill. App. 3d 271, 275-77 (Linn, Jr., specially
concurring), 277 (Romiti, P.J., specially concurring).)
The third member of the court, on the other hand, con-
sidered that such an offset would be improper. 99 IIl.
App. 3d 271, 274.
The courts in the majority of States that have consid-
ered “wrongful pregnancy” or “wrongful birth” actions
have recognized a cause of action against a physician
where it is alleged that because of the doctor’s negligence
the plaintiff conceived or gave birth. (See Annot., Tort
Liability for Wrongfwly Causing One to be Born, 83
A.L.R.3d 15, 29 (1978).) These courts have generally held
that in such actions the infant’s parents may recover for
the expenses of the unsuccessful operation, the pain and
suffering involved, any medical complications caused by
the pregnancy, the costs of delivery, lost wages, and loss
of consortium. (83 A.L.R.3d 15, 29-30.) There is sharp
disagreement, however, on the question involved here:
whether plaintiffs may recover as damages the costs of
rearing a healthy child.
There are courts which have allowed the recovery of
the cost of rearing a child on the ground that such ex;
pense is a foreseeable consequence of the negligence.
Those courts also have held that this recovery may be
offset, however, by an amount representing the benefits
received by the parents from the parent-child relation-
ship. See Stills v. Gratton (1976), 55 Cal. App. 3d 698, 127
Cal. Rptr. 652; Ochs v. Borrelli (1982), 187 Conn. 253, 445
A.2d 883; Pierce v. DeGracia (1982), 103 Ill. App. 3d 511;
Troppi v. Scarf (1971) ,31 Mich. App. 240, 187 N.W.2d
511; Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.
2d 169; Mason v. Western Pennsylvania Hospital (1981),
286 Pa. Super. 354, 428 A.2d 1366.
In a substantially greater number of jurisdictions, how-
ever, courts have denied recovery in suits for costs of
— 15a —
rearing a child. See McNeal v. United States (4th Cir.
1982), 689 F.2d 1200 (interpreting Virginia law); White
v. United States (D. Kan. 1981), 510 F. Supp. 146 (inter-
preting Georgia law); Boone v. Mullendore (Ala. 1982),
416 So. 2d 718; Wilbur v. Kerr (1982), 275 Ark. 239,
628 S.W.2d 568: Coleman vy. Garrison (Del. 1975), 349
A.2d 8; Public Health Trust v. Brown (Fla. App. 1980),
388 So. 2d 1084; Wilczynski v. Goodman (1979), 73 Til.
App. 3d 51; Maggard v. McKelvey (Ky. Ct. App. 1981),
627 S.W.2d 44; Kingsbury v. Smith (1982), 122 N.H......... :
442 A.2d 1003; P. v. Portadin (1981), 179 N.J. Super.
465, 482 A.2d 556; Sorkin v. Lee (1980), 78 A.D.2d 180,
434 N.Y.S.2d 300; Terrell v. Garcia (Tex. Civ. App. 1973),
496 S.W.2d 124, cert. denied (1974), 415 U.S. 927, 39 L.
Ed. 2d 484, 94 S. Ct. 1434; Rieck v. Medical Protective
Co. (1974), 64 Wis. 2d 514, 219 N.W.2d 242; Beardsley v.
Wierdsma (Wyo. 1982), 650 P.2d 288; see also Ball v.
Mudge (1964), 64 Wash. 2d 247, 391 P.2d 201.
Some of these courts have pointed to the speculative
nature of the damages (F.q., Sorkin v. Lee (1980), 78
A.D.2d 180, 484 N.Y.S.2d 300.) Others have expressed
eoncern for the child who will learn that his existence
was unwanted and that his parents sued to have the per-
son who made his existence possible provide for his sup-
port. (£.9¢., Wilbur v. Kerr (1982), 275 Ark. 239, 628 S.W.
2d 568.) Some courts have decided that requiring the pay-
ment of rearing costs would impose an unreasonable bur-
den upon a defendant, unreasonable because it would
permit the plaintiffs to enjoy the benefits of parenthood,
while shifting all of the expenses to the defendant. That
burden, the courts say, is out of proportion to the fault
involved. (E.g., White v. United States (D. Kan. 1981),
510 F. Supp. 146; Kingsbury v. Smith (1982), 122 N.H.
babinss , 442 A.2d 1003.) Courts have also stated that allow-
ing such damages would open the door to various false
claims and fraud. F.g., Rieck v. Medical Protective Co.
(1974), 64 Wis. 2d 514, 219 N.W.2d 242; Beardsley v.
Wierdsma (Wyo. 1982), 650 P.2d 288.
a
Too, many courts have declared an unwillingness to
hold that the birth of a normal healthy child can be judged
to be an injury to the parents. That a child can be con-
sidered an injury offends fundamental values attached to
human life. This was expressed with some sentimentality
in Public Health Trust v. Brown (Fla. App. 1980), 388
So. 2d 1084. The court, in denying recovery of rearing
costs to a woman who alleged that she had became preg-
nant after a negligently performed tubal litigation said:
“In holding that such a claim should not be recog-
nized, we align ourselves with a clear majority of
courts in other jurisdictions which have decided the
identical question [citations].
There is no purpose to restating here the panoply
of reasons which have been assigned by the courts
which follow the majority rule. *** In our view,
however, its basic soundness lies in the simple prop-
osition that a parent cannot be said to have been
damaged by the birth and rearing of a normal, healthy
child. Even the courts in the minority recognize, as
the jury was instructed in this case, that the costs
of providing for a child must be offset by the bene-
fits supplied by his very existence. [Citations.] But
it is a matter of universally-shared emotion and sen-
timent that the intangible but all-important, incal-
culable but invaluable ‘benefits’ of parenthood far out-
weight any of the mere monetary burdens involved.
[Citations.] Speaking legally, this may be deemed
conslusively presumed by the fact that a prospective
parent does not abort or subsequently place the ‘un-
wanted” child for adoption. [Citations.] On a more
practical level, the validity of the principle may be
tested simply by asking any parent the purchase price
for that particular youngster. Since this is the rule
of experience, it should be, and we therefore hold
that it is, the appropriate rule of law. It is a rare
but happy instance in which a specific judicial deci-
sion can be based solely upon a reflection of one of
—17a—
the humane ideals which form the foundation of our
entire legal system. This, we believe, is just such
a case.” 388 So. 2d 1084, 1085-86.
Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288, is
another decision in which the court refused to permit the
recovery of rearing costs. In rejecting the notion that
would allow the recovery of rearing costs with an offset
for the benefits of parenthood, it was observed:
“We believe that the benefits of the birth of a
healthy, normal child outweigh the expense of rear-
ing a child. The bond of affection between child and
parent, the pride in a child’s achievement, and the
comfort, counsel and society of a child are incalcul-
able benefits, which should not be measured by some
misplaced attempt to put a specific dollar value on a
child’s life.
The benefit or offset concept smacks of condemna-
tion law, where the trier of fact determines the value
of the land taken by the condemnor. The trier of fact
then determines the benefit that results to the land
owner, which benefit is deducted from the original
value to determine the proper award. If the concept
of benefit or offset was applied to ‘wrongful birth’
actions, we can conceive of the ridiculous result that
benefits could be greater than damages, in which
event someone could argue that the parents would
owe something to the tortfeasors. We think that
a child should not be viewed as a piece of property,
with fact finders first assessing the expense and dam-
age incurred because of a child’s life, then deducting
the value of the child’s life.” 650 P.2d 288, 293.
Similarly, in Terrell v. Garcia (Tex. Civ. App. 1973),
496 S.W.2d 124, 128, cert. denied (1974), 415 U.S. 927, 39
L. Ed. 2d 484, 94 S. Ct., 1434, the court, not without emo-
tion, reasoned:
— 18a —
“[A] strong case can be made that, at least in an ur-
ban society, the rearing of a child would not be a
profitable undertaking if considered from the eco-
nomics alone. Nevertheless, as recognized in [Hayes
v. Hall (Tex. Civ. App. 1972), 477 S.W.2d 402, rev’d
(Tex. 1972), 488 S.W.2d 412] and [Trop v. Scarf
(1971), 31 Mich. App. 240, 187 N.W.2d 511], the
satisfaction, joy and companionship which normal
parents have in rearing a child make such economic
loss worthwhile. These intangible benefits, while im-
possible to value in dollars and cents are undoubt-
edly the things that make life worthwhile. Who can
place a price tag on a child’s smile or the parental
pride in a child’s achievement? Even if we consider
only the economic point of view, a child is some
security for the parents’ old age. Rather than at-
tempt to value these intangible benefits, our courts
have simply determined that public sentiment recog-
nizes that these benefits to the parents outweigh their
economic loss in rearing and educating a healthy,
normal child. We see no compelling reason to change
such rule at this time.” 496 S.W.2d 124, 128.
We consider that on the grounds described the holding
of a majority of jurisdictions that the costs of rearing a
normal and healthy child cannot be recovered as damages
to the parents is to be preferred. One can, of course, in
mechanical logic reach a different conclusion, but only on
the ground that human life and the state of parenthood
are compensable losses. In a proper hierarchy of values
the benefit of life should not be outweighed by the ex-
pense of supporting it. Respect for life and the rights
proceeding from it are at the heart of our legal system
and, broader still, our civilization.
In Wilczynski v. Goodmam (1979), 73 Ill. App. 3d 51,
our appellate court held that a mother could not recover
the expenses of rearing a healthy child in an action that
charged a physician with negligence in performing an
— 19a —
abortion. The court, referring to legislation regarding
abortion, observed that it is the policy of this State to
protect human life. The court declared:
“In our judgment, a public policy which deems
precious even potential life while yet in the womb,
at such cost and expense that condition may entail,
does not countenance as compensable damage to its
parent or parents those additional costs and ex-
penses necessary to sustain and nuture that life once
it comes to fruition upon and after successful birth.
The existence of a normal, healthy life is an esteemed
right under our laws, rather than a compensable
wrong.” 73 [ll]. App. 3d 51, 62.
The reasoning of the court is applicable where an
action is brought for a negligent sterilization or a negli-
gent failure to determine pregnancy.
We would observe, too, that it is clear that public
policy commands the development and the preservation
of family relations. Exemplary of that policy in the tort
context is the rule prohibiting suits by children against
their parents for negligence. (Thomas v. Chicago Board
of Education (1979), 77 Ill. 2d 165, 171.) To permit par-
ents in effect to transfer the costs of rearing a child
would run counter to that policy. As stated earlier,
those jurisdictions that permit a recovery for rearing
costs have recognized that the recovery should be offset
by the measure by which the plaintiffs have been ben-
efited hy becoming parents. Two judges of the appellate
court panel here appear to favor this view. It can be
seen that permitting recovery then requires that the
parents demonstrate not only that they did not want
the child but that the child has been of minimal value
or benefit to them. They will have to show that the child
remains an uncherished, unwanted burden so as to mini-
mize the offset to which the defendant is entitled. The
court in Public Health Trust v. Brown (Fla. App. 1980),
388 So. 2d 1084, 1086 n.4, convincingly noted: “The
=~
adoption of that rule [allowing recovery] would thus
engender the unseemly spectacle of parents disparaging
the ‘value’ of their children or the degree of their affec-
tion for them in open court. It is obvious, whether the
conclusion is phrased in terms of ‘public policy,’ [cita-
tion] or otherwise, that such a result cannot be coun-
tenanced.”
We do not perceive the relevance here of 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, cited by the plaintiffs. In
Griswold the court invalidated a statute making the use
of contraceptives an offense. The court deemed that by
outlawing the use of contraceptives the State unneces-
sarily invaded marital privacy. In Roe, the court held
that a woman’s right to privacy is violated by a statute
that prohibits all abortions that are not necessary to
preserve the mother’s life.
The decisions appear irrelevant to the issue of whether
damages may be recovered under the circumstances here
for expenses after the birth of the child. The plaintiffs
refer to these decisions in opposing considerations of
publie policy argued by the defendants and relied upon
by some of the decis ons we have cited. We would note
that the plaintiffs themselves, as we shall show, rely upon
public policy.
We cannot on balance accept the plaintiffs’ contention
too that we should rigidly and unemotionally, as they put
it, apply the tort concept that a tortfeasor should be liable
for all of the costs he has brought upon the plaintiffs. It
has been perceptively observed, by distinguished au-
thority, that the life of the law is not logie but experi-
ence. Reasonableness is an indispensable quality in the
administration of justice. The New York Court of
Appeals, in rejecting a claim made in very different
context, used language, however, that is not without
appropriateness here:
— Jia —
“While it may seem that there should be a remedy
for every wrong, this is an ideal limited perforce
by the realities of this world. Every injury has
ramifying consequences, like the ripplings of the
waters, without end. The problem for the law is to
limit the legal consequences of wrongs to a control-
lable degree.’’ (Tobin v. Grossman (1969), 24 N.Y.2d
609, 619, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561.)
The reasons given for denying so-called rearing costs are
more convincing than the reasons for abstractly applying
a rule not suited for the circumstances in this character
of case.
As we have noted, the plaintiffs themselves also rely
upon considerations of public policy to temper the harsh-
ness of a proposed mechanical application of a principle
of damages. In general, under the law of damages a
plaintiff cannot recover for elements of damage he could
reasonably have avoided. (D. Dobbs, Remedies sec. 8.9,
at 579 (1973).) It has been said that this avoidable con-
sequences rule might prevent recovery for rearing costs
where the parents had an opportunity to avoid parent-
hood through abortion or adoption. (See Robak v. United
States (7th Cir. 1981), 658 F.2d 471, 479 n.23 (the court
stated that physicians in negligent-sterilization cases
should not be liable for the costs of rearing a normal
child where the plaintiffs learned of the pregnancy within
the first trimester and freely chose not to terminate
the pregnancy); Sorkin v. Lee (1980), 78 A.D.2d 180,
434 N.Y.S.2d 300 (the court held that the plaintiffs, suing
for a negligently performed vasectomy, could not recover
rearing costs, as they did not claim that the physician’s
negligence prevented them from terminating the preg-
nancy or that abortion would have been medically danger-
ous for the mother); Rieck v. Medical Protective Co.
(1974), 64 Wis. 2d 514, 219 N.W.2d 242 (it was contended
that plaintiffs should be required to minimize their dam-
ages by taking steps to terminate their parental rights).)
In contending that the avoidable-consequences rule should
a> 299, a
not be applied, it was argued for the plaintiffs in oral
argument that applying the rule here would violate a
policy, based on natural appreciation and affection, which
favors the rearing of children by their natural parents.
The area of law we consider here is new, but there
is reason to believe this question and related issues will
be presented with increasing frequency. As the decisions
we have cited show, courts regard the questions as mat-
ters of high social importance, transcending the individu-
al controversies involved.
Dean Prosser recognized that considerations of public
policy are of great importance in the law of torts. He
commented :
“Perhaps more than any other branch of the law,
the law of torts is a battleground of social theory.
Its primary purpose, of course, is to make a fair
adjustment of the conflicting claims of the litigating
parties. But the twentieth century has brought an
increasing realization of the fact that the interests
of society in general may be involved in disputes
in which the parties are private litigants. The notion
of ‘public policy’ involved in private cases is not
by any means new to tort law, and doubtless has
been with us ever since the troops of the sovereign
first intervened in a brawl] to keep the peace; but
it is only in recent decades that it has played a
predominant part. Society has some concern even
with the single dispute involved in a particular case;
but far more important than this is the system of
precedent on which the entire common law is based,
under which a rule once laid down is to be followed
until the courts find good reason to depart from it,
so that others now living and even those yet unborn
may be affected by a decision made today. There
is good reason, therefore, to make a conscious effort
to direct the law along lines which will achieve a
desirable social result, both for the present and for
—
the future.” Prosser, Torts sec. 3, at 14-15 (4th
ed. 1971).
For the reasons given, the judgment of the appellate
court is reversed and the judgments of the circuit court
are affirmed.
Appellate court reversed;
circuit court affirmed.
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 fee! that, upon
a careful examination, it mischaracterizes the issues with-
out any substantive legal foundation upon which to build.
The court inconsistently has said that the birth of a
normal child cannot he judged to be an injury to parents
and yet, at the beginning of the opinion, the court recog-
nizes 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 parents. 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 child-
birth? 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 medi-
eal costs of childbirth if they represent the first install-
ment in an investment in the preservation and develop-
ment of family relations? The opinion of the court con-
tradicts itself. Once the court has agreed that the cause
= ee
of action for wrongful birth can be brought in LIllinois,
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.” (Slip op. at 6.)
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 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 parent-
hood 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 pro-
tected 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 deci-
sion 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 com-
mision 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 con-
ceive 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 con-
fronted in such a situation with choices that they con-
sider 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, eg., Tropm v. Scarf
(1971), 31 Mich. App. 240, 187 N.W.2d 511; Claphan
v. Yanga (1980), 102 Mich. App. 47, 300 N.W.2d 727;
Sorkin vy. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300.
Once a breach of duty by a physician has been estab-
lished, 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.
— %a—
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 im-
portant, incalculable but invaluable ‘benefits’ of parent-
hood far outweigh any of the mere monetary burdens
involved.” 388 So. 2d 1084, 1085-86.
I feel such an assertion flies in the face of the wide-
spread 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 de-
liberately 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—ex-
penses 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
os 97 @, 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 relation-
ship should be considered by the trier of fact in deter-
mining the ultimate amount of damages. I do not believe
that the many benefits of having a child should be ex-
cluded 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 Tropm 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 dam-
ages, to the extent that this is equitable.” (Restate-
ment (Second) of Torts sec. 920, at 509 (1979).)
— 28a —
Thus the trier of fact can be in a more flexible position
in determining what is the most equitable award. Appli-
cation of the so-called “special benefits” rule is appro-
priate 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.
* * * [While] [t]he process would be admittedly
difficult for the judge to administer and would re-
quire 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), 92 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, bat 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
—- 20a —
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 con-
cern 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 seems
so 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 parent-
hood 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.
— 30a —
APPENDIX D
ILLINOIS SUPREME COURT
JULEANN HORNYAK, CLERK
Supreme Court Building
Springfield, Ill. 62706
(217) 782-2035
April 8, 1983
Ash, Anos, Harris & Freedman
Attorneys at Law
77 West Washington St., Rm. 1211
Chicago, IL 60602
No. 55733 - Donna Cockrum, et al., etc., et al., appellees,
vs. Dr. George Baumgartner, et al. (Dr.
George Baumgartner, et al., etc., appellants).
Appeal, Appellate Court, First District.
The Supreme Court today DENIED the petition for
rehearing in the above entitled cause.
Very truly yours,
/s/ Juleann Hornyak
Clerk of the Supreme Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.