APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. GILIBERTO, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1981.
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 operation or a negligent misdiagnosis of pregnancy, 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 subsequently 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, Afzul 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 based upon the negligent diagnosis of Edna Raja's condition, resulting in her inability to safely terminate her pregnancy. One element of damages sought by the plaintiffs was compensation for the expenses of raising and educating the child.
In both causes, the trial court dismissed the counts seeking compensation for the expenses of raising and educating the child. The dismissals were based on Wilczynski 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 before us is analytically indistinguishable from an ordinary medical malpractice action. The essential elements of tort liability are alleged. The plaintiffs have alleged that because of the defendants' breach of duty to properly treat and advise them, they will be required to incur the expenses of rearing the unplanned child. According to traditional tort principles, once these allegations of duty, breach of duty and proximate cause are proven, the tortfeasor 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 position 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. Goodman (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.
• 1 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 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 fundamental right to control their reproductivity. (See Comment, Wrongful Life: Birth Control Spawns a Tort, 13 J. Mar. 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.
• 2 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 doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable." (Emphasis added.) (Restatement (Second) of Torts § 920, at 509 (1979).)
To the extent that this section has been used to permit the emotional rewards of parenthood to offset its financial 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 mitigation 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 rearing 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. Miami L. Rev. 1409, 1415 (1977).
• 3 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:
"If the effort, risk, sacrifice, or expense which the person wronged must incur in order to avoid or minimize 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 ...