dissenting. The decision not to have children or to limit the size of a family is the lawful prerogative of any couple and of any mother. Our charge is not to weigh the moral values in making that choice. It is not for us to decide whether a couple errs when they elect to have no children. It is not for us to say whether a couple with three children makes a wise choice when they decide to have no more children in order to concentrate their resources on adequate support for the existing children.
The decision reached by the majority today penalizes the mother (or the couple) who makes these lawful choices. The penalty it extracts is to deny a recovery for damages caused by the negligence of another. This denial violates principles which are well-established in the law of negligence.
Recovery for negligence is grounded upon four elements: (1) a duty by the defendant to the plaintiff, (2) a breach of that duty (failure to act with due care), (3) a proximate cause relationship between the breach of duty and the resulting damages, and (4) provable damages.
Where a doctor undertakes to perform a tubal ligation for a woman to prevent the conception of children, a duty arises between the doctor and his patient. If the doctor performs this procedure negligently, there is a breach. The proximate result of the breach is the birth of a child. The cost of rearing a child can be measured. It is far less speculative than many, if not most, types of damage which are recoverable in a civil action. Pain and suffering, damage for the injury itself {i.e., loss of an arm), loss of consortium, loss of earning potential, and even future medical expenses, are all more speculative to gauge than is the cost of rearing a child. Studies and statistics abound to help measure the cost of rearing a child. The costs of child rearing are routinely computed in insurance and estate planning. Jones v. Malinowski (1984), 299 Md. 257, 272, 473 A. 2d 429, 436. Juries frequently calculate such costs in personal injury and wrongful death cases. ■
The position taken by the majority does not challenge the above reasoning. Instead, the majority chooses to deny recovery to one group of plaintiffs (and grant immunity to one group of tortfeasors) on the ground of public policy. .
The application of public policy as a rationale to determine tort recovery is not warranted in this case. As previously noted, the choice of the mother (or couple) is a lawful one. This court should not treat that choice as unlaw*60ful by imposing a denial of rights to those who make it. Further, the public policy of Ohio which underlies the majority position is inconsistent with the public policy as set forth in Bowman v. Davis (1976), 48 Ohio St. 2d 41, 45-46, 2 O.O. 3d 133, 135-136, 356 N.E. 2d 496, 499:
“* * * [W]e must further determine whether an action following a negligently performed and ‘unsuccessful sterilization procedure’ is against public policy.
“It is the opinion of this court that the cause of action pursued successfully by the Bowmans at the trial and appellate levels is not barred by notions of public policy. The choice not to procreate, as part of one’s right to privacy, has become (subject to certain limitations) a Constitutional guarantee. See Griswold v. Connecticut (1965), 381 U.S. 479; Roe v. Wade (1973), 410 U.S. 113; and Doe v. Bolton (1973), 410 U.S. 179. For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right.” (Emphasis added in part.)
Although Bowman did not specifically decide the proper standard for the measuring of damages for negligent sterilization cases (because the issue was not raised at the appellate level), it found that public policy did not preclude a sterilization case from being treated like other tort cases.
There is a still greater error underlying the public policy assumption on which the majority’s decision rests. Our decision need not wrestle with the worth of human life, or “placing a value on a smile or quantifying the negative impact of a temper tantrum,” as the majority so poignantly puts the issue.
This case is not about whether Ruth Johnson wants to keep her child. Johnson does not want to give up her baby girl. Now that the child is born she will do her best, within her resources, to raise and love the child. The mother has accepted the inevitable, and loves and wishes to raise her child. This does not erase the fact of injury and resulting damages. As one court has observed:
“* * * [T]he injury to the parents of a normal child does not reside in the product of the negligent act, i.e., the child itself; damages are not sought on the child’s behalf in such cases. Nor do the claimed damages have any relation to the child’s value or worth vis-a-vis the expenditures necessary to' raise her. The parents seek damages, not because they do not love and want to keep the unplanned child, but because the direct, foreseeable and natural consequences of the physician’s negligence has [sic] forced upon them burdens which they sought and had a right to avoid by submitting to sterilization.” (Emphasis added.) Jones, supra, at 270, 473 A. 2d at 435-436.
To properly analyze this case, it is necessary to go back in time to the point where Ruth Johnson made her lawful choice not to have a child. That choice was thwarted by the negligence of the defendant. The consequence is measurable and Johnson should recover the damages caused by the frustration of her choice.
To inject the unmeasurable value of a human life (the baby) into the argument is to charge the issues with misdirected emotions. In a wrongful death case we do not allow recovery for the value of the life that has been lost. We do not value lost smiles. We do not allow such recovery for the good reason that it cannot be measured. By the same logic we should not deprive a plaintiff of measurable damages flowing from a tort because smiles and temper tantrums cannot be valued.
*61The inconsistency in the majority’s application of tort law to this case is demonstrated by the majority’s willingness to recognize damages for “the pregnancy itself.” There is no rational difference between the damages caused by “the [wrongful] pregnancy itself” and the child-rearing expenses. The cost of the pregnancy can no more be balanced against “the value * * * [of] a smile” than can the child-rearing expenses.9
The majority expresses concern that a child may experience emotional harm by discovering that the parents did not desire the child’s conception. Such concern is disingenuous. The child may draw the same conclusion from the fact that a suit has been filed to recover the expenses of pregnancy and childbirth. Surely the majority cannot believe that refusal to recognize child-rearing expenses as damages will result in Johnson’s child being raised in a more loving, nurturing environment.
This court should follow well-established principles of tort law and allow the plaintiff to recover the readily measurable damages which were proximately caused by the defendants’ negligence. Accordingly, I dissent.
I agree with Judge Markus’ dissent in the case below in making the point that we should not distinguish between “healthy” and “abnormal” children born as a result of negligent medical treatment. The only difference should be one of assessing the amount of damages, not one of whether damages should be awarded.