dissenting.
I respectfully dissent for the reasons stated below.
The facts here are simple and without conflict. Todd, an unmarried adult female teacher, wanted to have a child but did not want to remarry to accomplish that end. When she was medically advised artificial insemination would not work in her case, she asked her current lover Straub, a 56 year old adult male teacher, to cease using condoms during intercourse and impregnate her. Straub already had raised 5 children of his own. While willing to help, Straub neither wanted to raise another child nor assume the financial obligations concomitant with child rearing. Straub told Todd he would accommodate her if he could be free of the obligation to support the child-to-be and his name as inseminator would remain a secret. Agreeing, Todd, an employed teacher fully capable of supporting the child, signed a written agreement to that effect that Straub had prepared. In the normal course of things thereafter, Todd became pregnant.
Three years after the child was born, Todd changed her mind, filed a paternity action against Straub, and was successful. The trial court ordered him, as father, to pay support per our rules for determining child support.
Straub appeals and the majority affirms on public policy grounds. It declares contracts which relieve parents of the obligation to support their offspring are void as against public policy. However, I am convinced our conventional public policy statements regarding the support and nurture of children born out of wedlock are subject to a narrowly-drawn exception under the facts with which we are here confronted.
Today, the general public almost universally looks with understanding and approval upon a single woman’s desire to bear and nurture a child without male interference. A financially responsible modern woman, at her option, has an unqualified right to do so, it perceives. In other words, our declarations on this subject are currently incorrect. They reflect policy which has been dead since the 1960’s. Accordingly, they must be changed, in my view, because we are subject to the public’s will in such matters.
*855I find no better statement of the vagaries of public policy than this:
Public policy has been described as a will-o’-the-wisp of the law which varies and changes with the interests, habits, needs, sentiments, and fashions of the day; the public policy of one generation may not, under changed conditions, be the public policy of another. Thus, the very reverse of that which is public policy at one time may become public policy at another time. Hence, no fixed rules can be given by which to determine what is public policy for all time. When an alteration of public policy on any given point of general interest has actually taken place, and such alteration is indicated by long-continued change of conduct on the part of the people affected and has become practically universal, the court may recognize the fact and declare the public policy accordingly.
... What the public policy is must be determined from a consideration of the federal and state constitutions, the laws, the decisions of. the courts, and the course of administration, not by the varying opinions of laymen, lawyers, or judges, as to the demands of the interests of the public.
17A Am.Jur.2d Contracts, § 258, Lawyers Cooperative Publishing Co. (1991). Accord, as to public policy determination methods, Russell v. Johnson (1943) 220 Ind. 649, 46 N.E.2d 219, 225-226.
I believe this change in public policy is readily discernible. Following Russell’s guidelines, I simply turn to our highest governing document, the Indiana Constitution. To eliminate any questions concerning the equality of women in Indiana, our 1983 legislature enacted P.L. 383-1983, the so-called “Clean-up Amendment” to the Indiana Constitution. Among other things, it rendered certain passages therein gender neutral by striking “men” from the wording and replacing it with “people” or by striking “man” and substituting “person.” Undoubtedly for our purposes here, the most significant of those changes appears in Article I, Section 1. It now reads, in part
ARTICLE I
SECTION 1. WE DECLARE, That all men people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; ... (emphasis supplied)
Other sections of our constitution contain similar changes to accomplish gender neutrality. Thus, our constitution now mandates absolute equality for all people, not just men. These amendments removed the last vestiges of contractual disability due to womanhood, if any still existed in 1983. Thus, under Art. I, Sec. 1, an Indiana woman in this modern age has had an inalienable right to contract in any manner she chooses in the pursuit of her happiness, in this case the birth of a child she could raise and nurture without male interference, since 1983. While other changes in federal and state law abound which articulate current public policy in this area, the amendment of Art. I, Sec. 1 in my opinion, is the only demonstration of it we need to justify the restatement of public policy which I believe must be made.
However, with absolute equality comes absolute responsibility under our concepts of law. Since the last obstructions to contractual equality due to womanhood have been removed, women are now irrevocably bound to perform the obligations they incur when contracting just as men are. Courts have neither the right nor the power in the name of public policy to intervene simply because the contracting woman with the benefit of hindsight determines she has made a bad bargain by entering into a contract of this kind. The courts now must leave the parties where they find them in such cases.
Thus, in my opinion, the contract in question is valid and enforceable because it is conversant with current public policy. Todd had an absolute right to contract with Straub as she did, and is absolutely bound by the obligations she incurred under that contract. Quite simply, she bargained away the right to file a paternity action *856against Straub and to publicly name him as the child’s father. Exculpatory agreements which agree in advance that one is under no obligation of care for another and not liable for future actionable conduct have long been recognized. Weaver v. American Oil Co. (1972) 257 Ind. 458, 276 N.E.2d 144, 148; LaFrenz v. Lake County Fair Board (1977), 172 Ind.App. 389, 360 N.E.2d 605, 607; Loper v. Standard Oil Co. (1965) 138 Ind.App. 84, 211 N.E.2d 797, 800-801.
As the second reason for voiding the contract at issue here, the majority says
Although the primary goal of a paternity action is to secure support and education for illegitimate children, “a legitimate subsidiary goal of this same action, however, is ‘to protect the public interest by preventing the illegitimate child from becoming a ward of the state.’ ” Matter of M.D.H., supra, citing, J.E.G. v. C.J.E. (1977), Ind.App., 360 N.E.2d 1030. Pub-lie policy considerations mandate that the state take an active interest in providing for the welfare of illegitimate children in order to avoid placing an undue financial burden on its taxpayers.
Opinion at 852. While undoubtedly that statement of policy is correct when the child in fact needs the financial support of both parents for its nurturing and upbringing, that is not the case here. In other words, B.M.T. will not want for either necessaries or education during her minority. Todd is gainfully employed and fully capable of providing for all the needs of the child she so desperately wanted. Under current public policy, the contract she signed here is valid and enforceable. Neither the legislature nor the judiciary can act to impair the obligations she incurred thereunder because the record demonstrates the child will never become a ward of the state.
I would reverse and remand with instructions to set aside the judgment and dismiss the petition.