concurring in part'and dissenting in part.
I concur in the holding by the majority that the complaint states a cause of action for medical malpractice by Varonica Jackson.
I dissent from the majority’s failure to recognize the cause of action of Rufus Jackson for medical malpractice and the plaintiffs’ cause of action based on contract. Further, I am of the opinion that the Court should not have addressed the damage issue on the bare record of the pleadings, and that having done so, the majority adopted a standard contrary to settled common law principles.
In order to properly resolve the issues before us, I find it appropriate to review some of the legal background affecting the questions presented to us by this appeal. The Supreme Court of the United States has recognized the right of couples to practice contraception as being protected by the right of privacy under the Bill of Rights to the United States Constitution. See Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed. 2d 510 (1965) (married couples); Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed. 2d 349 (1972) (unmarried couples). The Court found the right of privacy to be older than the Bill of Rights. See also Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960). The Constitution of North Carolina likewise protects the right of privacy. N.C. Const. *188art. I, Declaration of Rights. See State v. Poe, 40 N.C. App. 385, 252 S.E. 2d 843, disc. rev. denied, 298 N.C. 303 (1979). “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” N.C. Const, art. I, § 35.
From the above, it follows that a husband and wife have the right to plan their family and to determine, within their abilities, whether and when they will have a child. Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E. 2d 653 (1984); Cockrum v. Baumgartner, 99 Ill. App. 3d 271, 425 N.E. 2d 968 (1981), rev’d on other grounds, 95 Ill. 2d 193, 447 N.E. 2d 385, cert. denied sub nom. Raja v. Michael Reese Hospital, 464 U.S. 846, 78 L.Ed. 2d 139 (1983). See generally Note, Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant, 68 Va. L. Rev. 1311 (1982).
As set forth above, the right of married couples to practice contraception is protected by the United States Constitution. Griswold, 381 U.S. 479, 14 L.Ed. 2d 510. Although the physical injury in this case was inflicted upon the wife, defendant’s negligence violated the husband’s constitutional right as to contraception. Defendant’s negligence proximately resulted in harm to both plaintiffs, not the wife alone as stated by the majority.
Here, plaintiffs have not alleged loss of consortium but seek only recovery of certain expenses incurred as a result of Mrs. Jackson’s pregnancy and the child’s birth. Pierce v. Piver upheld sub silentio the right of the father to assert a claim based upon negligence of a doctor resulting in an unplanned pregnancy of his wife. 45 N.C. App. 111, 262 S.E. 2d 320, disc. rev. allowed, 300 N.C. 198, appeal dismissed, 300 N.C. 375 (1980) (after discretionary review was allowed the parties to this litigation settled the dispute and the appeal was thereupon dismissed). Other jurisdictions have recognized the father’s standing to sue in wrongful conception and wrongful birth cases. See, e.g., Robak v. United States, 658 F. 2d 471 (7th Cir. 1981) (wrongful birth); Phillips v. United States, 508 F. Supp. 544 (D.S.C. 1981); Ochs v. Borrelli, 187 Conn. 253, 445 A. 2d 883 (1982); DiNatale v. Lieberman, 409 So. 2d 512 (Fla. Ct. App. 1982) (wrongful birth); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 (1971); Sherlock v. Stillwater Clinic, 250 N.W. 2d 169 (Minn. 1977) (wrongful conception); Kingsbury v. Smith, 122 N.H. 237, 442 A. 2d 1003 (1982) (wrongful conception). *189See Annot., Medical Malpractice, and Measure and Element of Damages, in Connection With Sterilization or Birth Control Procedures, 27 A.L.R. 3d 906, §§ 3[a], 4[a], 5[a] (1969 & Supp. 1986). Although Mr. Jackson was not being medically treated by defendant, the complaint alleges that he, along with Mrs. Jackson, discussed their desire to have the IUD replaced in Mrs. Jackson, and defendant repeatedly represented to Mr. Jackson that the device would be so retained. In addition to the allegations of defendant’s negligence, plaintiffs’ complaint is based upon allegations of defendant’s breach of an express contract with plaintiffs. Plaintiffs allege that defendant totally failed to perform his obligations under the terms of the contract with plaintiffs. I conclude that a cause of action has been stated on behalf of Mr. Jackson: he relied upon defendant’s exercising reasonable care in retaining the IUD in Mrs. Jackson; he was responsible for the payment of the charges for defendant’s services; he was affected emotionally and financially by the conception and birth of the child. N.C.G.S. § 50-13.4(b) (1984). That Mr. Jackson would be damaged by the negligent failure of defendant to reinsert the IUD was reasonably foreseeable. See Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E. 2d 559 (1984). Moreover, to forbid the husband the opportunity to recover for the injury done to him violates his right to “have remedy by due course of law.” N.C. Const, art. I, § 18.
The better practice would be to allow the trial court in the first instance to address the issue of what damages are recoverable. The appellate division would then have a full evidentiary record upon which to make a proper analysis as to damages rather than attempting to formulate an abstract rule. The majority has decided damage issues that have not been presented to us upon an evidentiary record and which may never be so presented. Sound judicial discipline would dictate withholding such momentous decisions until all available evidence and arguments can be presented to the Court. Precipitous judgments are to be avoided.
Nevertheless, the majority has plunged ahead and attempted to formulate a special rule of damages in this case. Although the majority relied upon common law principles in determining a cause of action had been alleged, it abandoned that safe harbor in embarking upon a voyage to seek a rule of damages. I write briefly in dissent. The majority has devised a special rule of damages *190for the benefit of doctors faced with malpractice claims involving the concept of wrongful pregnancy. Defendant doctors should not have a special rule of damages in this type of medical malpractice case. As the Supreme Court of Wyoming said in recognizing a wrongful conception claim, “[a] ruling denying any damages to appellants would render the medical profession immune from liability for negligent treatment of patients seeking to limit the size of their families.” Beardsley v. Wierdsma, 650 P. 2d 288, 292 (1982). Under settled common law principles of this state, a defendant is responsible for all damages that proximately result from his negligence. Certainly damages should not be eliminated because of difficulty of proof.
If a rule must be formulated at this time, the Court would be well served by sticking with basic common law rules of damages. Such rules allow plaintiffs to recover all damages that proximately flow from defendant’s negligence, including, but not limited to, costs of the childbirth, pain and suffering of Varonica Jackson accompanying the childbirth, mental anguish, and the costs of rearing the child, subject to a deduction or setoff for the value of benefits received by the plaintiffs by having the healthy child. Restatement (Second) of Torts § 920 (1979); Stills v. Gratton, 55 Cal. App. 3d 698, 127 Cal. Rptr. 652 (1976); Ochs v. Borrelli, 187 Conn. 253, 445 A. 2d 883; Anonymous v. Hospital (1976-11), 33 Conn. Supp. 125, 366 A. 2d 204 (1976); Green v. Sudakin, 81 Mich. App. 545, 265 N.W. 2d 411 (1978); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511; Sherlock v. Stillwater Clinic, 260 N.W. 2d 169. The expenses incurred in caring for and rearing a child whose conception was a proximate result of defendant’s negligence is certainly a foreseeable result of defendant’s negligence and a compensable injury for which defendant is liable in damages. See, e.g., Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964) (once breach of duty is proved, defendant is liable for all damages suffered by plaintiff, “notwithstanding the fact that these damages were unusually extensive”).
The majority mistakenly relies upon Azzolino to prohibit recovery of damages for the costs of rearing a child. The statement in Azzolino relied upon by the majority was made with respect to the claim of little Michael Azzolino for “wrongful life.” It does not apply to the issue of “wrongful pregnancy” or “wrongful conception,” which is the shorthand description of the cause *191before the Court at this time. Azzolino is further distinguished from our present case in that the negligence in Azzolino occurred after pregnancy, whereas here the negligence of defendant occurred before and actually was a proximate cause of the pregnancy. The federal court for the Middle District of North Carolina made such a distinction in Gallagher v. Duke University, 638 F. Supp. 979 (M.D.N.C. 1986).
Finally, with respect to the contract claim, I find that the allegations are sufficient to survive the Rule 12(b)(6) motion. Merely because the contract claim includes by reference the allegations of negligence is not a sufficient basis to deny the contract action. A plaintiff may allege inconsistent causes of action. Defendant relies solely upon N.C.G.S. § 90-21.13(d). Defendant’s reliance upon the statute is misplaced. Here, plaintiffs do not allege that defendant guaranteed, warranted, or made an assurance as to the result of the medical treatment. They do not allege that defendant guaranteed in any fashion that Mrs. Jackson would not become pregnant. Plaintiffs allege that defendant totally failed to do that which he promised to do — maintain the IUD in Mrs. Jackson’s body. The statute is not applicable to plaintiffs’ alleged contractual claim.
The majority purports to hold that “defendant never intended to be contractually bound by the ‘promise’ ” to replace Varonica’s IUD. That could be a possible holding upon a summary judgment hearing or upon a motion for directed verdict under N.C.R. Civ. P. 50(a). We are reviewing a ruling on a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6). We are only concerned with the pleadings. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). Pleadings are to be liberally construed. Under the theory of notice pleading, a statement of claim is adequate if it gives sufficient notice of the claim to enable defendant to answer and prepare for trial, to allow the application of res judicata, and to show the type of case brought. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). Plaintiffs’ complaint alleges that before each of the medical procedures defendant represented to both plaintiffs that the IUD would be retained or replaced within Varonica and defendant failed to comply with his representation. The complaint was sufficient to allow defendant to answer and he has done so. It has been sufficient to allow defendant to prepare for trial, it will support the doctrine of res judicata, and *192it shows that it is an action for damages for breach of contract. The complaint complies with the requirements of Sutton v. Duke. Of course, as the majority concedes, the failure to replace the IUD could constitute negligence on the part of the defendant. That does not exclude the alternative remedy that the actions alleged could also support an action for breach of contract.
It is to be remembered that the law of contracts is to be applied to the relationship between physician and patient. This is particularly true where there is a specification as to what the physician shall do. See Kennedy v. Parrott, 243 N.C. 355, 90 S.E. 2d 754 (1956). So it is here. Plaintiffs have stated a proper cause of action based upon breach of contract.