dissenting.
The issue before us is not whether plaintiff has alleged sufficient facts to satisfy the elements of the various claims she asserts. Rather, the question is only whether that issue and others related to her claims can be addressed in the courts of New Jersey. The trial judge dismissed the complaint only because there is “a clear jurisdictional reluctance to support a cause of action based on fraudulent misrepresentation of one’s ability to have or not have a child.” He concluded that “the Court’s reluctance extends from an unwillingness to introduce state authority into this area.”
I cannot join the majority in affirming that conclusion in this case. I agree wholeheartedly with my colleagues that what occurs in the bedroom between consenting adults is protected by a constitutional right of privacy and should not be cognizable in our courts. However, this case is premised on the assertion that plaintiff’s “consent” to having sex with defendant and not taking her normal birth control precautions was based on his fraudulent misrepresentation. In other contexts our judges and juries frequently review factual disputes and decide if sexual relationships involve nonconsensual or otherwise unlawful conduct. See N.J.S.A. 2C:14-2, 2C:14-3, 2C:14-5. More significantly, with respect to civil claims, our courts have held that even a spouse can bring a personal injury action *547“based on transmittal of a sexual disease”. G.L. v. M.L., 228 NJ.Super. 566, 571 (Ch.Div.1988). G.L. quoted from Kathleen K. v. Robert B., 150 Cal.App.3d 992, 198 Cal.Rptr. 273, 277 (Cal.App. 2 Dist.1984), which held that a woman could recover damages stemming from a man’s failure to inform her before intercourse that he had contracted genital herpes. The court found that the right to privacy did not prevent recovery where the “[c]onsent to sexual intercourse [was] vitiated by one partner’s fraudulent concealment of the risk of infection with venereal disease ..., whether or not the partners involved are married to each other.” Kathleen K. v. Robert B., supra, 150 Cal.App.3d at 997, 198 Cal.Rptr. at 277.1
If physical injury premised on the failure of a spouse or nonspouse sexual partner to disclose a contagious disease is actionable, see also B.N. v. K.K., 312 Md. 135, 152, 538 A.2d 1175, 1184 (Md.1988), I fail to see why another type of fraud resulting in the “unprotected” sexual relationship should not be cognizable at least where the sexual activity has impact on plaintiff’s physical condition. Cf. Frame v. Kothari, 115 N.J. 638 (1989); Giardina v. Bennett, 111 N.J. 412 (1988) with respect to the emotional distress claim. See also Alice D. v. William M., 113 Misc.2d 940, 450 N.Y.S.2d 350 (N.Y.City Civ. Ct.1982) (cause of action for negligent misrepresentation resulting in pregnancy sustained).
*548The plaintiff here alleges that she engaged in “unprotected” sexual intercourse based upon a knowing misrepresentation. But more than mere intercourse is involved. Compare, State v. Saunders, 75 N.J. 200 (1977). Plaintiff became pregnant and gave birth. She claims that she had to reduce work, if not abandon her profession, at least during pregnancy, and independent of the time she was out of work during pregnancy, she will be diverted from her chosen profession and social activities because of the time, effort and attention it will take to raise and care for the child. Further, she will have expenses in this regard independent of those provided in the support order and the medical expenses which defendant must reimburse for the childbirth.2
Plaintiff may have a difficult time proving that she justifiably relied on the misrepresentation that defendant had a vasectomy and could not impregnate her. She may also have difficulty meeting her burden of proving that his misrepresentation caused her to engage in sexual intercourse without taking her usual birth control precautions and was thus a “proximate cause” of the pregnancy. And, if the case goes that far, the trial judge and jury may have to face some extremely difficult issues relating to the question of damages sustained by plaintiff. See, e.g., Berman v. Allan, 80 N.J. 421, 430-434 (1979); Procanik by Procanik v. Cilio, 97 N.J. 339, 353-355 (1984); P. v. Portadin, 179 N.J.Super. 465, 470-472 (App.Div.1981); M. and Wife v. Schmid Laboratories Inc., 178 N.J.Super. 122, 126-127 (App.Div.1981). See also University of Ariz. v. Superior Court, 136 Ariz. 579, 667 P. 2d 1294 (Ariz.1983) (giving *549birth to a normal, healthy child does not preclude damages); Annotation, “Tort Liability for Wrongfully Causing One to be Born”, 83 A L. A. 3rd 15 (1978). These issues simply are not now before us in this case, and our concern with the policies and difficulties flowing from these questions, should they be reached, cannot form an underlying basis for affirming on the premise that the judiciary should not consider them at all.
There is much to be said for the position articulately developed by my colleagues. I, too, am concerned about a “potential for harming innocent children” and recognize that “using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child.” (Majority op. at 541-542). But the majority concludes that the birth of a normal, healthy child in effect precludes all damages, and does so notwithstanding the misrepresentation of one partner to the sexual act. And it so holds in a case where the mitigation issue was neither raised, briefed nor argued.3 Moreover, the holding of the majority is essentially based on cases which, as the majority notes, understandably and appropriately reject defenses to paternity and support actions. However, here, the right of privacy is being used as “a shield from liability.” (Majority op. at 539). See Barbara A. v. John G., supra.
*550Further, the damages claimed in this case transcend the impact of child birth.4 Plaintiff seeks damages from the consequences of her pregnancy, a claim which, as I understand it, is in addition to those stemming from the resulting birth itself.
Finally, the issues posed by this case are difficult and troublesome. Like my colleagues I have agonized over them. However, I must dissent from their conclusion which, in essence, precludes review of these questions by dismissing the complaint altogether.
Accordingly, I dissent.
I recognize, as pointed out by the majority, that Kathleen K. stated that the claim was cognizable under Barbara A. v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr. 422 (Cal.App. 1 Dist.1983) because of "[t]he tortious nature of respondent's conduct, coupled with the interest of the state in the prevention and control of contagious and dangerous diseases ...” 150 Cal.App.3d at 996, 198 Cal.Rptr. at 276. See also Richard P. v. Superior Court, 202 Cal.App. 3d 1089, 249 Cal.Rptr. 246 (Cal.App. 1 Dist.1988). Compare Perry v. Atkinson, 195 Cal.App.3d 14, 240 CalRptr. 402 (Cal.App. 4 Dist.1987). The fear of fraudulent claims, see Barbara A. v. John G., supra, 193 Cal.Rptr. at 428, has no real validity in light of our policy which even permits certain claims between spouses to be considered on their merits. See e.g., Merenoff v. Merenoff, 76 N.J. 535, 557 (1978).
Defendant does not expressly assert the "single controversy” doctrine as a bar to relief. Given the 1983 constitutional amendment merging the jurisdiction of the Juvenile and Domestic Relations Court into the Superior Court, and the establishment of the Family Part of the Chancery Division, issues might arise as to the need for consideration of this subject as part of a "single controversy" in the Superior Court. Cf. Tevis v. Tevis, 79 N.J. 422, 434 (1979). I would not preclude consideration of the issue in the future, but it was not asserted as a basis for dismissal before us.
In fact, as the majority notes, "defendant has not asserted in his answer plaintiff's duty to mitigate damages” (majority op. at 543, n. 9). Moreover, as the majority further notes, "plaintiff correctly argues that she alone has the right to decide whether to terminate her pregnancy by abortion” (id.). I have real questions concerning application of the mitigation principle in these circumstances and would not decide the issue in this context. See University of Ariz. v. Superior Court, supra, 667 P.2d at 1301, n. 5, where a majority of the Supreme Court of Arizona rejected a mitigation argument, noting that parents who gave birth to a normal and healthy, but unwanted child, "should not be precluded from recovering damages because they select the most desirable of ... unpalatable choices," quoting Cockrum v. Baumgartner, 95 Ill.2d 193, 207, 69 Ill.Dec. 168, 175, 447 N.E.2d 385, 392 (1983) (Clark, J., dissenting). Note that the Arizona court permits the jury "to assess and offset the pecuniary and non-pecuniary benefits which will inure” by virtue of the relationship with the child. University of Ariz. v. Superior Court, supra, 667 P.2d at 1301.
It is hard to take issue with the majority’s suggestion that no damages flow from the birth of a happy, normal child. But there may be economic or non-economic consequences in a given case which flow from the decision to give birth even to a loved child, such as the pain which flows from the "stigma," at least in some areas, of being a single parent. Thus, the mother may sustain damages well beyond that provided in a support order for the child.