(concurring and dissenting):
I agree with much of the majority opinion; however, I depart from both the Chief Justice and Justice Durham on the damage measure. For that reason, I write.
First, I want to make it clear that I agree with the majority of the members of the Court that a tort action for wrongful pregnancy should be recognized in Utah and that such an action can arise from the birth of a healthy child. As the opinion of the Chief Justice notes, this cause of action has been recognized in the vast majority of jurisdictions. I also agree that the Utah Wrongful Life Act, Utah Code Ann. §§ 78-11-23 to -25 (1987) does not bar this cause of action. See Note, Wrongful Birth and Wrongful Life; Analysis of the Causes of Action and the Impact of Utah’s Statutory Breakwater, 1984 Utah L.Rev. 833, 859. For that reason, we can postpone reaching the constitutionality of that act to another day. See generally id. at 862-63.
Second, with respect to the measure of damages available in such actions, I do not agree with the position of the Chief Justice or with that of Justice Durham. Because the malpractice claim here is analytically indistinguishable from any other malpractice claim, I see no reason to adopt some sort of truncated damages remedy as both the Chief Justice and Justice Durham propose. See id., 1984 Utah L.Rev. at 864-56. The Chief Justice would limit damages by excluding any consideration of the costs of raising the child, despite the fact that these damages are clearly foreseeable. I think the recoverable damages should include all reasonably foreseeable harms, including the costs of raising the child. As nearly as I can determine, Justice Durham would permit recovery of child-rearing costs in some circumstances, but would amend what is generally referred to as the “benefits rule” by not permitting the jury to consider counterbalancing benefits that the parents might derive from bearing and raising the child. I would adopt the unadulterated “benefits rule” for measuring damages, which most closely approximates the general damages rule that if the tort-feasor has conferred benefits as well as detriments on the plaintiff, the benefits and detriments must be netted out in any award. Restatement (Second) of Torts § 920(1979); 22 Am.Jur.2d Damages § 551 (1988).
The various possible rules and the justifications for adopting the straight benefits rule rather than the rules advanced by the Chief Justice and Justice Durham are described persuasively by the Arizona Supreme Court in University of Arizona Health Sciences Center v. Superior Court, *522136 Ariz. 579, 667 P.2d 1294 (1983). The benefits rule allows
recovery of all damages which flow from the wrongful act but requires consideration of the offset of benefits. Under this view, the trier of fact is permitted to determine and award all past and future expenses and damages incurred by the parent, including the cost of rearing the child, but is also instructed that it should make a deduction for the benefits that the parents will receive by virtue of having a normal, healthy child.
136 Ariz. at 582, 667 P.2d at 1297 (citations omitted).
The damage measures advanced by the Chief Justice and by Justice Durham are, in my view, the result of judges’ imposing upon the tort law in a rather ad hoc fashion their personal moral and emotional judgments about the abstract benefits and detriments that accompany children, with the result that they have severely distorted the tort law remedies that should be available to those who have been injured as a result of malpractice. For the reasons discussed by the Arizona Supreme Court, among others, I cannot agree that this is appropriate. See 136 Ariz. at 582-84, 667 P.2d at 1298-99.