(dissenting):
I dissent. I would answer “no” to the first question certified to us. I would do this for the reasons enunciated by the Supreme Court of Nevada in Szekeres ex rel. Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986), which held that the birth of a normal, healthy child is not a civil wrong for which the law will provide a remedy because there are no damages. This is true even if negligent or careless conduct on the part of a professional was found to have contributed to the eventual birth. The court noted that some jurisdictions recognize such a cause of action and stated:
From our point of view what is overlooked in these decisions is the basic question of just what is the damage or the “wrong” to be legally redressed. The case involving the birth of a normal child is analytically distinguishable from an ordinary medical negligence action with its attendant “resulting injurious consequences,” such as death, disability or other adverse iatrogenic consequences; and it should not be facilely assumed that childbirth is a “wrong” or the type of injurious consequence for which society should, through its courts, as a matter of public policy, give reparation.
Many courts have taken for granted that normal birth is an injurious and damaging consequence and have disagreed only on the “how-much” part of such claims. We do not take the wrongness nor the injuriousness of the birth event for granted and say, to the contrary, that normal birth is not a wrong, it is a “right.” It is an event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to the negligent conduct of someone purporting to be able to prevent the eventuality of childbirth.
Szekeres, 102 Nev. at 96-97, 715 P.2d at 1078 (footnotes omitted).
The Supreme Court of Kansas took a similar view in Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (1985), holding that as a matter of public policy, the birth of a normal, healthy child does not constitute a legal harm for which damages are recoverable. The court noted that wrongful death actions are recognized because of the great value we all place on human life and that it would be inconsistent to recognize actions for the wrongful birth or wrongful conception of a healthy child. See also to the same effect Morris v. Sanchez, 746 P.2d 184 (Okla.1987) (Hodges, J., concurring and dissenting).
I submit that it likewise should be the public policy of this state not to recognize such a cause of action. Our legislature in Utah Code Ann. § 78-11-23 (1987), while not addressing the precise issue before us, has by its declaration of public policy placed a high value on the right to be born and live. Yet, in the face of that declaration, this Court today recognizes a cause of *523action which denigrates human life and awards damages for the birth of a healthy child. The Court’s holding is an insidious attack on the family unit since the unwanted child will someday learn that his parents did not want him and in fact went to court to force someone else to pay for the medical and hospital costs attendant to his birth, the wages they lost when he was bom, and the pain and suffering and “emotional trauma” of his mother. The emotional harm inflicted by this cruel knowledge will be carried by the child throughout his or her life. Who is going to compensate this unwanted child in damages for his “emotional trauma” in being born, through no fault of his own, to parents who did not want him and considered the advent of his birth not as a “blessed event,” but as damage to them? Vice Chief Justice Frank X. Gordon in his opinion in University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 586, 667 P.2d 1294, 1301 (1983), aptly pointed out that the prosecution of a wrongful pregnancy action requires that parents deny the worth of their child, thus placing their own values over those of the child.
If this same unwanted child were killed by the negligence of a third party, the parents would have a cause of action for wrongful death and would claim damages on account of his death. They would then vigorously resist a defense by the tort-fea-sor that the child was unwanted by his parents since they sought and recovered damages for his birth. At a time when courts and the justice system are being criticized for endeavoring to remedy every perceived wrong by dollars and cents and a litigious public is rushing to the courts for every new and different disappointment and irritation, the majority’s recognition of a cause of action for wrongful pregnancy is indeed unfortunate. As stated by the New York Supreme Court, Appellate Division, in Weintraub v. Brown, 98 A.D.2d 339, 348-49, 470 N.Y.S.2d 634, 641 (1984), a holding that the birth of a healthy, unwanted child was an injury to the parents
would be incompatible with contemporary views concerning one of life’s most precious gifts — the birth of a normal and healthy child. We are loath to adopt a rule, the primary effect of which is to encourage, indeed reward, the parents’ disparagement or outright denial of the value of their child’s life.
When a healthy but unplanned child is born to parents, not due to a physician’s negligence in any way but due to the parents’ own negligence in not preventing conception, no one has thought that the parents were “damaged” or had been “wronged.” True, the unexpected birth may cause some financial strain, some hardship on the parents, and an adjustment in their lifestyle for a few years. But when a physician’s negligence and his malpractice insurance carrier are added to the equation, everything is changed. “Damage” is suddenly present, and the courthouse is rushed to for a remedy to this new “wrong.”
I would not recognize a cause of action in tort, but would, as did the Nevada court in Szekeres let a plaintiff recover in contract the costs of medical, surgical, and hospital care associated with the failed surgery. I would not, however, allow the recovery of damages for “the physical and mental pain and damages suffered by the mother as a result of the pregnancy and subsequent childbirth ... and during a reasonable recovery period thereafter; wages necessarily lost by the mother and/or the father of the child because of the pregnancy, childbirth and postnatal recovery; and punitive damages if applicable.” Even Mrs. Stratton, the plaintiff here, does not seek lost wages of her husband or punitive damages. I agree with the position taken by Justice Russell in his dissenting opinion in Miller v. Johnson, 231 Va. 177, 188-89, 343 S.E.2d 301, 307-08 (1986), that these items of damages, if they are to be recoverable, should be offset against the benefits of parenthood. The majority rejects damages for the rearing of the child because they could only be determined by speculation and conjecture and yet allows, without opportunity for diminution, damages against which there are offsetting benefits. Justice Miller wrote, in part:
In the final paragraph of the majority opinion, the court notes the futility of *524requiring juries to weigh the burdens of parenthood against the joys and benefits arising from a child’s life. The majority opinion rejects the plaintiffs’ claims for damages for the expenses of rearing their children to maturity because a balance between the burdens and the offsetting benefits of parenthood could only be reached by speculation and conjecture. I fully agree.
Yet the majority, illogically it seems to me, permits recovery for medical expenses, pain, suffering, lost wages, and emotional distress arising from the defendant physicians’ failure to prevent the birth of healthy, normal children. Are these “injuries” not to be offset by the pleasures and benefits of parenthood? The thought that a balance exists between the burdens of childbirth and the joy of motherhood is hardly new. [citing John 16:21]
If there are benefits resulting to parents from the birth of healthy, normal children, as the majority evidently believes, why should the defendants not be entitled to an offset for such benefits against the plaintiffs’ claimed damages arising from childbirth, just as they would be entitled to offset them against the expense of rearing the children to maturity? The majority rejects the latter as too speculative and conjectural for the fact-finding process. Yet pain, suffering, and mental anguish, which the majority permits, are more subjective and less susceptible of precise calculation than the actual expenses of rearing children. In my view, damages for the claimed plaintiffs’ injuries resulting from the birth of healthy, normal children should be disallowed for the same reason the majority disallows damages for the expense of rearing children to maturity.
In summary, I would allow recovery, on the theory of breach of contract, of only medical expenses of the failed sterilization procedure.