concurring in part and dissenting in part.
I concur in the holding that there is a cause of action for a so-called “wrongful conception” or “wrongful pregnancy.” To me these terms are complete misnomers because I believe the cause of action to be simply one of medical malpractice which happens to involve the birth of a child.
I respectfully dissent from the holding that the cost of rearing a healthy child born as the result of a physician’s malpractice in the performance of a sterilization procedure is not recoverable. The majority has faithfully set out the reasons articulated by a number of states for their denial of the right to recover the costs of rearing a healthy child. Before addressing the reasons followed by the majority in reaching its result, it is well to state what I believe this case is not about. I do not believe this case involves any question of the right to life, the right to an abortion, the value of human life, or the value of the family as an integral unit of our society. I believe this case is about medical malpractice and whether or not an exception will be carved out to exonerate physicians from liability for the bulk of the damages which flow from malpractice in performing sterilization procedures.
The principal reason given by the states which deny recovery for the costs of rearing a healthy child is the fact that society places such a high value on human life that the birth of a healthy child cannot be a legal wrong for which damages may be recovered. This concept embodies the belief that there is a sanctity in human life which will be somehow undermined if damages are allowed against a negligent physician for the cost of rearing a child. In addressing this argument, the court in Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883, 885[2] (1982), held that this argument “founders on its premise that a recognition of the economic costs of parenthood is necessarily a negative judgment on the child who occasions them.” The court further held that it could take judicial notice of the fact that rearing a child is a costly enterprise which is injurious to the parents. The court further stated:
There can be no affront to public policy in our recognition of these costs and no inconsistency in our view that parental pleasure softens but does not eradicate economic reality. The plaintiffs' testimony at trial confirming their love for Catherine should not become a reason for denying them financial relief.
Id. 445 A.2d at 885-86[2].
In Jones v. Malinowski, 299 Md. 257, 473 A.2d 429, 435[3] (1984), the court answered the above argument in two ways. The court stated:
To adopt such a policy and rule of law would be to subject a physician to liability for the direct, foreseeable and natural consequences of all negligently performed operations except those involving sterilization — a result, we think, completely at odds with reason. That the public policy of Maryland may foster the development and preservation of the family relationship does not, in our view, compel the adoption of a per se rule denying recovery by parents of child rearing costs from the physician whose negligence has caused their expenditure. In other words, it is not to disparage the value of human life and the societal need for harmonious family units to protect the parents’ choice not to have children by recognizing child rearing costs as a compensable element of damages in negligent sterilization cases.
*300In University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 584, 667 P.2d 1294, 1299 (1983), the court stated that even though a family can adjust to the birth of an unplanned child it must be recognized that there are cases where such birth can cause emotional or economic problems to the parents. In Note, Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant, 68 Va.L.Rev. 1311, 1316-17 (1982), the author considered this argument and stated:
Although they may well have realized that they would love a child if one were bom to them, they may also have realized that their affection would not provide the money to feed the child or the time for the working mother to resume her interrupted career. To disallow the parents’ recovery because they love their child is to leave uncompensated the significant emotional and economic harms that may accompany a wrongful birth. In a family of limited means, the application of an overriding-benefit theory injures the child as well as the parents, since the exclusion of all damages denies the family a fund from which to provide for the unplanned child.
Further, as stated in Lovelace Medical Center v. Mendez, 111 N.M. 336, 342, 805 P.2d 603, 609 (N.M.1991), “it is not the birth of the child that is the harm” but “the invasion of the parents’ interest in the financial security of their family — an invasion clearly foreseeable (or at least reasonably to be foreseen, as a jury might determine) by the doctor as the probable consequence of his negligence in performing the procedure in question.”
These authorities, to me, contain the more persuasive reasoning on the subject. To award damages to the parents for the rearing of an unplanned child does not disparage the worth of the child or indicate a disregard on the part of the court for the worth of a human being. The awarding of such damages is simply the recognition that in today’s world it is costly to rear a child and, in fact, the presence of an unplanned child in a family of limited means or in a family with a working mother can prove to be a disruptive factor which will damage the family unit if the child does not bring with it some financial help.
The majority does not suggest, nor is there reason that it should, that the decision of the Girdleys for the wife to undergo a sterilization procedure was in any way illegal or improper. Having elected to undergo a proper procedure to limit the size of their family, this court should not ignore the reality of the hardship which the arrival of an unplanned child can create. To do so is simply to take a “head in the sand” approach to the problem.
The majority opinion quotes from Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982), to the effect that allowing the recovery of such damages will harm the child when it finds out that it was unplanned or that the parents “did not want it” and brought suit for damages for the costs of its rearing. The note in 68 Va.L.Rev. at 1329 answers this argument when it states:
Several courts have argued that the wrongful birth suit should be denied because of the psychological harm to the child who learns of it in later years, but this psychological damage, if it exists, will certainly be less harmful than the hardship of growing up ill-clothed, ill-fed, and ill-educated in a family whose financial balance was destroyed by the child’s unplanned birth and whose members resent being forced to share their resources with an unexpected newcomer.
Further, the identity of the family and the child could be shielded by the use of initials in court proceedings as is currently done in juvenile cases.
The majority holds that damages cannot be awarded because it is generally recognized in tort law that the plaintiff is required to mitigate damages. In this case the majority holds that to mitigate damages the parents could choose either adoption or abortion. The rule cited by the majority is tempered by the fact that the rule requires an injured party to only make a reasonable effort to minimize damages. Fletcher v. City of Independence, 708 S.W.2d 158, 172 (Mo.App.1986). In Troppi *301v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 520[8] (1971), the court held that the necessity of a plaintiff to make a reasonable effort to mitigate damages is ordinarily to be decided by the trier of fact but that as a matter of law no mother can be reasonably required to abort “even if legal” or “place her child for adoption.” A pointed response to this argument was given in Schork v. Huber, 648 S.W.2d 861, 866-67 (Ky.1983) (Leibson, J., dissenting):
Both the best interest of the child, and the natural instincts of the parent, make it unreasonable to require parents to submit the child in the womb to abortion, or the child in the crib to adoption. The defendant has no right to insist that the victims of his negligence have the emotional and mental makeup to abort or place the child for adoption.
No one could argue persuasively that it would be reasonable to require a mother to undergo an abortion or place her child for adoption in order to minimize the damages which could be assessed against the negligent physician who performed the sterilization on her. This rule has no application in the manner suggested by the majority.
The majority holds that the costs of child rearing are speculative. It should first be noted that this court by Rule 88.01 has adopted Civil Procedure Form No. 14 for the amount of child support to be awarded in actions involving child support. Courts have long awarded reasonable amounts necessary for the support of children. Further, in Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1, 5[5] (1990), the court answered this argument:
The determination of the anticipated costs of child-rearing is no more complicated or fanciful than many calculations of future losses made every day in tort cases. If a physician is negligent in caring for a newborn child, damage calculations would be made concerning the newborn’s earning capacity and expected medical expenses over an entire lifetime. The expenses of rearing a child are far more easily determined. If there is any justification for denying recovery of normal tort damages in a case of this character, it is not that the cost of rearing a child is incapable of reasonable calculation or is too great to impose on a negligent physician.
In University of Arizona, the court held that the right to damages must be established without speculation but that uncertainty as to the amount will not preclude recovery and is a question for the jury. 136 Ariz. at 586, 667 P.2d at 1301[6], In Jones, the court noted that calculations of the costs of rearing a child are based on well recognized economic factors regularly made by actuaries for estate planners and insurance companies and that such costs are well appreciated by the average citizen through firsthand experience. 473 A.2d at 436[5].
In this state courts have recognized that there is no fixed measure, standard, or table which the jury can use as an accurate guide in assessing damages for pain and suffering. Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291, 302 (Mo. banc 1978). Nevertheless, courts have not wrung their hands over the difficulty of the task and refused to allow juries to assess damages for pain and suffering. As Judge Prewitt wrote in the well reasoned opinion of the court when this case was before the Southern District, the cost of rearing a child is no more speculative than the issue of damages in many tort cases, especially those in wrongful death cases.
I would allow as a recoverable element of damage the costs of rearing a child to the age of majority but such damages to be offset by the pecuniary and non-pecuniary benefits which will inure to the parents by reason of their relation to the child. University of Arizona, 667 P.2d at 1301[7, 8]. In Jones the court held that damages must be offset by benefits which would allow the jury to mitigate the damages by weighing them against the worth of the child’s companionship, comfort, and aid to the parents. In addition the jury should consider family size and income. 473 A.2d at 436-37[6, 7]. Assessing the benefits would be no more difficult than assessing damages for wrongful death under the items permitted to be considered by § 537.090, RSMo 1986.
*302For these reasons I would reverse the judgment.
RENDLEN, J., concurs.