(concurring and dissenting):
In view of the authorities and rationale presented by the majority opinion, I concur that an action based on wrongful pregnancy is a valid cause of action in this state. However, I do not agree with the majority’s limitation on recoverable damages. Instead, I would hold that damages should be assessed under a “benefits rule” analysis, on a case-by-case basis, to determine the extent of any substantial negative impact suffered by plaintiff and her family resulting from a subsequent childbirth. This approach would promote justice by permitting consideration of the impact “accruing to parents in differing circumstances” of defendants’ negligence. Boone v. Mullendore, 416 So.2d 718, 726 (Ala.1982) (Faulkner, J., specially concurring).
I find the majority opinion’s rationale for limiting damages to be unpersuasive given the arguments favoring the “benefits rule.” I also disagree with the majority’s conclusion that damages to a parent from raising a child to majority are unascertaina-ble. In making these assertions, the majority ignores the realities of the circumstances in which this kind of case tends to arise. See generally Custodio v. Bauer, 251 Cal. App.2d 303, 59 Cal.Rptr. 463 (Cal.Ct.App. *5171967) (family with nine children and of limited financial means sought to prevent further diminution of family resources); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal. Rptr. 652 (Cal.Ct.App.1976) (unmarried, unemployed, part-time art student with self-described emotional problems frightened at prospect of having a child); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977) (following birth of seventh child, parents sought to ensure that their family would grow no larger); Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983) (plaintiff with history of gynecological and pregnancy-related emotional problems); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982) (following births of two children with orthopedic defects, plaintiff with history of miscarriage and ovarian surgery sought to prevent subsequent pregnancy); University of Ariz. Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983) (having three children, plaintiffs sought to limit family size for financial reasons); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984) (economic factors motivate plaintiffs to limit family size after having three children, each born with complications); see also Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971) (plaintiffs of limited economic means, using oral contraceptives to limit family size, receive tranquilizers instead of birth control pills). Furthermore, I find the majority’s use of a limited damages rule inconsistent with fundamental principles of tort law. Generally, when breach of a legally recognized duty arises, the tort-feasor is liable in damages. See Acculog, Inc. v. Peterson, 692 P.2d 728, 731 (Utah 1984). It is axiomatic that when the principles of tort law are not followed, the salutory effect of those principles on the standard of care in the community may be diminished. See Johnston v. Elkins, 241 Kan. 407, 411, 736 P.2d 935, 939 (1987).
It is true, as the majority observes, that in an action for wrongful pregnancy, “failure of the physician to achieve success does not automatically indicate negligence.” Johnston, 736 P.2d at 939. Moreover, physicians should not be guarantors of a sterilization procedure’s success. See id. The issue is usually not negligence in the performance of a sterilization procedure or contraceptive treatment, but rather a failure to inform the patient about pregnancy risks remaining after the procedure or the treatment. In cases where sterilization is intentionally sought to avoid a specific harm and the physician in question is fully informed about the harm to be avoided and then fails to take reasonable measures to avert that harm when it is foreseeable, that, physician should be liable in damages. This view is consistent with the majority’s decision that “ ‘[a] physician who assumes the responsibility for a sterilization procedure at the request of a patient assumes a professional duty to render appropriate service, including testing and advice regarding the procedure, exercising the same standard of care applicable to other members of the medical profession in the community.’ ” See id.
Therefore, it logically follows that a negligent performance of that duty which results in an avoidable, foreseeable injury must be compensable in damages. Any artificial limitation on the damages recoverable would work to immunize the tort-fea-sor from the economic consequences of his or her negligent conduct and to shift those consequences to the innocent victim. Such judicially imposed immunity is contrary to both the compensatory and the deterrent goals of tort law.
Recovery for child-rearing costs where a negligently performed sterilization has a substantial negative impact on the family is in the interest of “greater justice.” See Hartke, 707 F.2d at 1552. Some courts have advanced the notion that recovery of child-rearing costs offends a fundamental societal premise that the birth of a child is always a benefit. See, e.g., Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Illl.Dec. 168, 447 N.E.2d 385, cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983) (public policy considerations dictate that a healthy child’s birth is a benefit to parents); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982) (bond of affection between par*518ent and child should not be measured by some misplaced attempt to assess a dollar value on child’s life); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct.App. 1980) (requiring negligent physician to pay such costs would impose an unreasonable burden on the tort-feasor because the costs were out of proportion to the culpability). However, as the majority observes, permitting recovery of damages which are proven to be the “natural, probable and direct consequence of professional negligence ... does not contravene the policy of placing a high value on human life.” Johnston, 736 P.2d at 939; see also University of Ariz., 667 P.2d at 1298-99 (cases should not be decided on sentiment alone — many situations exist where for economic or emotional reasons or both, it is obvious that recoverable damage has occurred); Ochs, 445 A.2d at 885-86 (no inconsistency with public policy that parental pleasure softens but does not eradicate economic reality).
Jurisdictions which recognize wrongful pregnancy as a cause of action and allow recovery for child-rearing costs premise damages on the fact that a resultant birth may cause hardship to family members due to the diminution of family resources rather than the birth itself. See, e.g., University of Ariz., 667 P.2d at 1294; Stills, 55 Cal.App.3d at 698, 127 Cal.Rptr. 652; Ochs, 445 A.2d at 883; Malinowski, 473 A.2d at 429; Sherlock, 260 N.W.2d at 173. As the Maryland Supreme Court succinctly summarized: “Parents seek [these] 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 burdens upon [the parents] which they sought to avoid ... by submitting to sterilization.” Malinowski, 473 A.2d at 436.
In this light, recovery for child-rearing expenses is, in my view, appropriate when a negligently caused pregnancy forces upon parents substantial economic, emotional, or physical hardships which they sought to avoid. See, e.g., id.; University of Ariz., 667 P.2d at 1300-01; Ochs, 445 A.2d at 883-84; Hartke, 707 F.2d at 1553-54 (applying District of Columbia law). But see Flowers v. District of Columbia, 478 A.2d 1073 (App.D.C.1984) (adopting the limited damages rule). Regarding the appropriateness of a recovery for child-rearing expenses resulting from pregnancy, the Arizona Supreme Court stated: “[I]n most cases, the family can and will adjust to the birth of a child, even though they had not desired to have it[; however,] we must recognize ... that there are cases where the birth of an unplanned child can cause serious emotional or economic problems to the parents.” University of Ariz., 667 P.2d at 1299. The following is illustrative of this concept:
A couple privileged to be bringing home the combined income of a dual professional household may well be able to sustain and cherish an unexpected child. But I am not sure the child’s smile would be the most memorable characteristic to an indigent couple, where the husband underwent a vasectomy or the wife underwent a sterilization procedure, not because they did not desire a child, but rather because they faced the stark realization that they could not afford to feed an additional person, much less clothe, educate and support a child when that couple had trouble supporting one another. The choice is not always giving up personal amenities in order to buy a gift for the baby; the choice may only be to stretch necessities beyond the breaking point to provide for a child that the couple had purposely set out to avoid having.
Cockrum, 69 Ill.Dec. 168, 177, 447 N.E.2d 385, 394 (Clark, J., dissenting).
The foreseeable injury associated with a negligently caused pregnancy need not be solely economic. There are “many situations in which for either financial or emotional reasons, or both, the parents are simply unable to handle another child and where it would be obvious that from either an economic or emotional perspective — or both — substantial damage has occurred.” University of Ariz., 667 P.2d at 1298; see also Ochs, 445 A.2d at 886. It is logical, therefore, that where pregnancy may cause substantial emotional, psychological, or *519physical stress to family resources, the resulting injury merits compensation. In these cases, compensation for child-rearing expenses will be appropriate.
I fully agree that a healthy child’s birth does, in the usual circumstance, confer many benefits upon its family. However, these benefits may in a very real sense be offset by hardships that the parents sought to avoid. Thus, the extent of any resulting injury will vary depending on the particular family’s circumstances and expectations. See Cockrum, 69 Ill.Dec. at 174, 447 N.E. 2d at 391 (Clark, J., dissenting). In my view, parental planning of familial resources, motivated by their aspirations for their then-existing children’s futures, is an important consideration. It is conceivable that some parents may limit their family size in order to provide their children with specific opportunities for travel or education. Therefore, the most relevant consideration for ascertaining actual injury is the parents’ motivation for seeking the sterilization procedure. See Malinowski, 473 A.2d at 434; see also Hartke, 707 F.2d at 1553; Troppi, 187 N.W.2d at 518-19 (consequences of birth from failure of contraceptives contingent on the purposes and circumstances of parents — comparing unmarried female college student with honeymooning newlyweds).
After consideration of parental motivations for avoiding pregnancy, it is conceivable that many wrongful pregnancy cases will be adequately remedied by the majority rule. However, it is just as conceivable that there are many cases wherein pregnancy and birth will constitute a substantial negative impact on the family. In these cases, the limited damages rule advanced by the majority would not work an equitable result.
In determining whether child-rearing expenses are appropriate in a given case, the extent of the negative impact on the family must be measured.
We tend to agree that a factfinder should place great weight on a couple’s reason for undergoing sterilization in deciding whether the subsequent birth of a child, on balance, constitutes damage to the parents. [The] reason for departing from the usual view that childrearing is a positive experience is in effect a calculation of the way in which they anticipate the costs of childbirth to outweigh the benefits. That calculation, untainted by bitterness and greed, or by a sense of duty to a child the parents have brought into the world, is usually the best available evidence of the extent to which the [childbirth] has in fact been an injury to them.
Hartke, 707 F.2d at 1555.
Reflecting these sentiments, the Arizona Supreme Court stated:
For example, where the parent sought sterilization in order to avoid the danger of genetic defect, the jury could easily find that the uneventful birth of a healthy, non-defective child was a blessing rather than a “damage.” [In this light] such evidence should be admissible, and the rule which we adopt will allow the jury to learn all the factors relevant to the determination of whether there has been any real damage and, if so, how much.
University of Ariz., 667 P.2d at 1300.
Thus, in view of the realities in which these cases arise, a case-by-case application of a “benefits rule” analysis is not merely necessary, but is required. The impact of a negligently caused pregnancy may differ dramatically according to a particular family’s circumstances and aspirations. It must be emphasized that it is impossible to articulate a mechanistic test, as opposed to identifying an analytic approach. For this and the other reasons discussed above, a case-by-case approach to the determination of damages is the most practical.
The majority opinion maintains that damages are unascertainable because “it is impossible to tell, at an early stage in the child’s life, whether its parents have sustained a net loss or net gain.” McKernan v. Aasheim, 102 Wash.2d 411, 420, 687 P.2d 850, 855 (1984). To support this assertion, the majority utilizes the rationale that parents are either benefited or burdened by their child’s future behavior, and because it is too speculative to determine this at a *520child’s birth, offset is impracticable. See id. I disagree. Child-rearing costs are not too speculative to deny their recovery under settled tort principles. Malinowski, 473 A.2d at 436.
We have held on other occasions that damages may be recovered even when they require juries to consider intangible values. See, e.g., Jones v. Carvell, 641 P.2d 105 (Utah 1982) (wrongful death); Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983) (alienation of affection). Moreover, in Bastian v. King, 661 P.2d 953 (Utah 1983), this Court stated:
[I]t is generally recognized that some degree of uncertainty in the evidence of damages will not suffice to relieve a defendant from recompensing a wronged plaintiff. As long as there is some rational basis for a damage award, it is the wrongdoer who must assume the risk of some uncertainty. Where there is evidence of the fact of damage, a defendant may not escape liability because the amount of damage cannot be proved with precision.
Id. at 956 (citations omitted).
Furthermore, the assertion that child-rearing costs are too speculative to be recovered is inconsistent with the theory of damages in this particular cause of action. In wrongful pregnancy, damages are for “the diminution in the family [resources] that necessarily resulted in a hardship to the other members of the family.” Sherlock, 260 N.W.2d at 173. I fail to see why economic data about family resources would be unavailable or unhelpful in these cases.
I agree that the offset of financial costs by the intangible benefits conferred on a family by a child may in some cases be unrealistic. See Flowers, 478 A.2d at 1081 (Ferren, J., dissenting). However, instead of prohibiting such damages altogether, I would allow recovery on a case-by-case basis under what I believe is a proper application of the benefits rule, using a standard of “substantial negative impact to the family.”
First, the plaintiffs would have to demonstrate by a preponderance of the evidence that they elected sterilization for some important economic, personal, or therapeutic reason and that the subsequent childbirth has resulted in the substantial harm the parent sought to avoid by submitting to the procedure. See, e.g., Flowers, 478 A.2d at 1081 (Ferren, J., dissenting); Ochs, 445 A.2d at 884; Sherlock, 260 N.W.2d at 173. In order to discredit that assertion, the defending physician could inquire into the plaintiffs’ financial situation and motives via discovery and cross-examination. Flowers, 478 A.2d at 1081 (Ferren, J., dissenting). For example, the “jury should be allowed to infer ... that a person of means could not credibly give economic reasons as the sole motive for sterilization.” Id.
Second, as Judge Ferren wrote when dissenting in Flowers:
The [plaintiff parent] must present expert evidence of anticipated reasonable childrearing costs attributable to the negligent sterilization. To be reasonable, these must be based on generally necessary, not elective expenditures. The physician may rebut that presentation by showing the [claimed] damages are not as great as alleged because certain kinds of proposed expenses should not be considered necessary [in light of the evidence presented] (e.g. private schools, music lessons) and also because the family can anticipate some calculable financial benefits from the child.... However, evidence of emotional benefit (“satisfaction, love, joy, and pride”) — as distinguished from financial benefit— cannot be introduced to offset [any] financial injury. In [these cases] ... evidence that... [the] child can be expected to provide emotional benefit is irrelevant, and the majority’s concern about denigrating the child’s value as a human being ... is misplaced.
478 A.2d at 1081 (citations omitted). The irrelevance of intangible emotional benefits in cases of this nature is underscored by the irony inherent in requiring juries to “credit” parents of an unplanned-for (but healthy) child with the economic value of the child’s future life in the abstract. Notwithstanding Justice Zimmerman’s charac*521terization of this approach as an “unadulterated” benefits rule for measuring damages, I believe that it would in practical application deprive most victims of this kind of tort of any recovery. Jurors will instead bring their subjective, philosophical, moral, and religious beliefs to the determination of the dollar value of a child’s life, unrelated to any actual facts about the child or the life in question. I do not think that this is “fact finding” in any conventional sense, nor do I think that any jury is likely to find a “child’s life” to be less valuable than any economic cost, burden, hardship, or sacrifice imposed upon its family. The net result, I believe, would be to permit a cause of action in these cases, but preclude any realistic likelihood of recovery.
The majority rule of recovery is not well suited for the diverse contexts and circumstances that arise in wrongful pregnancy cases. Using a benefits rule analysis, on a case-by-case basis, with a standard of "substantial negative impact,” would provide fairness in cases where the majority rule will not. The majority rule in effect says to some families burdened by the harm and struggle which some unwanted pregnancies bring that they have no remedy despite the hardship and stress they may be condemned to undergo. Moreover, to the extent that physicians are encouraged by a liability rule to maintain a high standard of care in this area of practice, the limited recovery rule dilutes the liability rule’s deterrent effect. Therefore, I dissent from the majority’s holding on limited recovery.