(concurring in part and dissenting in part):
I would agree with the majority that health care providers should be responsible in damages for costs attendant to birth when they negligently perform a surgical sterilization. I would allow damages for obstetrical care, pre and post partum; all costs of lying in; where appropriate, loss of wages by the mother up to delivery and a short period thereafter, and her pain and suffering caused by delivery. Also if this were a case where the child were born seriously retarded, deformed, or chronically ill, I too would hold the health care provider responsible for the cost of lifetime support and care for the child. But here we are dealing with the birth of a normal and healthy, although undesired, child whose life I consider above monetary value. At this point I must respectfully dissent.
One of the most important functions of a state’s highest appellate court is to guide and shepherd the growth of the common law of that state according to the Court’s perception of existing public policy. This task is at once delicate and awesome. Emotion and sentimentality indeed should not play a part in our Court’s decision of whether to apply an existing principle of law to a given set of facts. Were it otherwise the doctrine of stare decisis would be a fraud. But when, as members of this Court, we are called upon to extend an existing rule of damages to an entirely new concept within our jurisprudence, especially one so fraught with subjective differences in values, opinion and personal belief, we should tread cautiously, led by our most trusted senses, with both the goals of justice and the *587strengths and weaknesses of our system equally in mind.
The rule of damages established by the majority in this case may indeed be logical and legally scientific. Logic and science may, however, lead to results at variance with public policy. Although I have a very high degree of respect for our country’s system of civil justice, and readily admit that our common law concepts of tort liability have caused products manufactured in the United States to be among the safest in the world, I feel that there are some human misfortunes that do not lend themselves to solution by combat in the courtroom. Wrongful pregnancy, in my opinion, is one of those. I believe the rule allowing damage recovery beyond the costs of birth in cases such as these would violate what I consider the public policy of our state in several ways.
(1) As is pointed out in the majority opinion, the prosecution of this type of action requires parents to deny the worth of the child, thus placing the values of the parents over those of the child. Under the “benefits rule,” a judgment for the parents is a conclusion by the court that a child is not worth what it takes to raise him or her. This problem has been recognized by several authors who refer to such a child as an “emotional bastard” when attempting to describe the stigma that will attach to the child when he learns the true circumstances of his upbringing. Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark, 239, 628 S.W.2d 568 (1982); Note, Wrongful Birth: A Child of Tort Comes of Age, 50 U.Cin.L.Rev. 65 (1981). In attempting to minimize the effect of a wrongful pregnancy action on the child, some courts have addressed part of their opinion to the child:
“Since the child involved might some day read this decision as to who is to pay for his support and upbringing, we add that we do not understand this complaint as implying any present rejection or future strain upon the parent-child relationship. Rather we see it as an endeavor on the part of clients and counsel to determine the outer limits of physician liability for failure to diagnose the fact of pregnancy. This case and this complaint are well beyond such limits.”
Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis.2d 514, 520, 219 N.W.2d 242, 245-46 (1974). See also Coleman v. Garrison, 349 A.2d 8 (Del.1975) (advising the child that the case was not founded on rejection of him as a person, but rather was a malpractice action “sounding for the out-limits of physician liability.” Id. at 14). One court has gone so far as to guarantee the parents’ anonymity by captioning the case Anonymous v. Hospital, 33 Conn.Sup. 126, 366 A.2d 204 (1976). The above authorities indicate the practical effect that such litigation may have on the child in future years. Although later discovery of their parents’ feelings toward them may harm only a few children, I think a few are too many.
(2) The decision in this matter will likely impinge upon the availability and costs of sterilization surgery in Arizona. It is conceivable that hereafter many health care providers will either refuse to perform these procedures, or they will become so expensive that only the wealthy will be able to afford them. If the intended result of the majority is to lessen the number of unwanted pregnancies by requiring more skill and caution in the performance of sterilization procedures, I believe that this case will be self-defeating. There will probably be an increase in the number of unwanted pregnancies due to the increased cost and relative unavailability of surgical sterilization.
(3) Finally, it is well known that our courts are already overcrowded with cases. The majority has by this decision created a new and expansive concept which will generate new and protracted litigation. For example, in Cox v. Stretton, 77 Misc.2d 155, 352 N.Y.S.2d 834 (1974), the plaintiff became pregnant and bore a child after her husband had received a vasectomy and was told by the defendant that the procedure would result in sterility. Aside from alleging causes of action in negligence and *588breach of contract, the complaint also set forth a cause of action on behalf of the plaintiffs’ infant children. The court summarized the cause of action as follows:
“[On behalf of the infant children, the plaintiffs’ allege] that they, as prior born children, by reason of the defendant’s negligence and breach of contract, will be deprived in the future of a portion of the care, affection, training and financial support that each would have received, except for the birth of their unexpected brother.”
Id. at 158-59, 352 N.Y.S.2d at 839. Although the court refused to recognize this cause of action, the case indicates the scope of actions that may potentially be brought in the aftermath of the decision handed down by this Court today. Such actions are particularly tempting both to the unscrupulous and the unethical which will further add to the court’s burden.
A further non-policy criticism that I have of the majority opinion is that it is not entirely consistent. If the Court is to allow some of the logical principles of tort law to apply in this very sensitive area, then I feel that all of them should apply. The majority, however, fails to do so in at least two instances.1 First, in the usual lawsuit if a plaintiff has failed to mitigate his or her damages, this fact is allowed as an offset against recovery. In this case the Court, although eschewing emotions and sentiment, has for reasons unexplained decided that the parents’ failure to choose abortion or adoption should not be considered in mitigation. The majority has apparently decided that these methods of mitigating damages are unreasonable as a matter of law. The question of the reasonableness of a method of mitigating damages, however, is generally a question of fact to be decided by the trier of fact. In some cases abortion or adoption will not be reasonable, while in others it will be reasonable. If we are going to open the door, logically, we should open it all the way. If the plaintiff parents — who have endeavored not to have a child, pleaded his or her birth as an injury to them, and claimed substantial damages— chose not to take advantage of abortion or adoption, the defendant should be permitted to establish that by so doing the parents unreasonably failed to mitigate their damages. Note, Wrongful Birth Damages: Mandate and Mishandling by Judicial Fiat, 13 Val.U.L.Rev. 127, 164-170 (1978) [hereinafter cited as Wrongful Birth Damages]; Note, Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant, 68 Va.L.Rev. 1311, 1328 (1982) [hereinafter cited as Limitations on Damages]; cf. Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265 (1974) (question of whether option of abortion was appropriate cannot be decided on motion to dismiss).
Second, the majority misapplies Restatement (Second) of Torts § 920 (1977). Section 920 specifically states that for a benefit to be considered in mitigation of damages it must be “a special benefit to the interest of the plaintiff that was harmed * * *.” Furthermore, a comment to § 920 explains how the “same interest” requirement operates:
“Limitation to same interest. Damages resulting from an invasion of one interest are not diminished by showing that another interest has been benefited. Thus one who has harmed another’s reputation by defamatory statements cannot show in mitigation of damages that the other has been financially benefited from their publication * * * unless damages are claimed for harm to pecuniary interests. * * * Damages for pain and suffering are not diminished by showing that the earning capacity of the plaintiff has been increased by the defendant’s act. * * Damages to a husband for loss of consortium are not diminished by the fact that *589the husband is no longer under the expense of supporting the wife.”
Restatement, supra, § 920 comment b. A proper application of the “same interest” requirement in a wrongful pregnancy case would require that pecuniary harm of raising the child be offset only by corresponding pecuniary benefit, and emotional benefits of the parent-child relationship be applied as an offset only to corresponding emotional harm. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Comment, Robak v. United States: A Precedent-Setting Damage Formula For Wrongful Birth, 58 Chi.[-]Kent L.Rev. 725, 746-47 (1982); Kashi, The Case of the Unwanted Blessing: Wrongful Life, 31 U.Miami L.Rev. 1409, 1416-17 (1977); Wrongful Birth Damages, supra, at 158; Limitations on Damages, supra, at 1326.
The majority’s reasons for overlooking the “same interest” requirement of § 920 are unpersuasive. The majority argues that the economic burden and emotional distress of rearing an unexpected child are so closely related that they cannot be separated. This seems inconsistent with the majority’s expressed confidence in the ability of jurors to assess intangible emotional and pecuniary factors.
The majority also argues that because the “benefits rule” of § 920 is designed to prevent unjust enrichment, the “same interest” requirement of the rule should not be applied. The same argument could be made in any case and amounts to little more than an argument for deleting the “same interest” requirement from the “benefits rule.”
I am convinced that the proper balance between strict tort law principles and sound public policy would be struck by precluding recovery of the future costs of raising and educating the child.
CAMERON, J., concur.. I point these inconsistencies out not because I believe the majority opinion should remedy them. Indeed, the rule adopted by the majority but purged of these inconsistencies would be even less desirable as a matter of policy. I point them out in an attempt to demonstrate that the majority’s attempt to avoid the moral and policy problems associated with this area of the law by appealing to strict principles of tort law is flawed. I am convinced that any such attempt would be flawed.