(specially concurring).
{24} While I agree with the majority that the trial court should be affirmed, I am concerned that the majority opinion, by focusing on the issue of damages, may suggest to the reader that we accept Wallis’ argument that Smith’s alleged commitment to practice birth control gave rise to legally-enforeeable rights. I write separately to emphasize my concern that the causes of action proposed by Wallis intrude on fundamental privacy interests.
{25} In recent years, New Mexico courts have given substantial weight to privacy interests when confronted with arguments urging the extension of existing causes of action to intimate interpersonal behavior. See Padwa v. Hadley, 1999-NMCA-067, 127 N.M. 416, 981 P.2d 1234 (declining to recognize tort cause of action based on defendant’s pattern of seducing plaintiffs former sex partners); Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320 (Ct.App.1991) (reversing damages awarded to divorcing spouse for husband’s intentional infliction of emotional distress); see also Vigil v. Haber, 119 N.M. 9, 888 P.2d 455 (1994) (rejecting rule that ownership of engagement ring should turn on respective fault of parties leading to broken engagement; commenting on unseemly spectacle in which parties reveal highly personal information in effort to demonstrate the other’s fault); Thompson v. Chapman, 93 N.M. 356, 600 P.2d 302 (Ct.App.1979) (urging abolishment of tort of alienation of affections). These authorities suggest to me that causes of action which purport to regulate intimate interpersonal relationships are disfavored by New Mexico courts and that causes of action that intrude on the right of privacy must be supported by compelling countervailing considerations.
{26} If we recognize a claim based on intentional misrepresentation, we have started down the road towards establishing standards of conduct in reproductive relationships-one of the most important and private forms of interpersonal relations. In the absence of a clear balance favoring the imposition of legal duties of disclosure in reproductive relations between competent adult sex partners, candor in reproductive matters should be left to the ethics of the participants.
[T]here are still many immoral acts which do not amount to torts, and the law has not yet enacted the golden rule. It is impossible to afford a lawsuit for every deed of unkindness or betrayal, and there is much evil in the world which must necessarily be left to other agencies of social control.
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts § 4 at 22 (5th ed.1984). In my view, Wallis has failed to demonstrate a clear balance in favor of recognition of a cause of action for contraceptive fraud/breaeh of promise to practice birth control.
{27} As the majority notes, the present case is materially distinguishable from Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991), a case on which Wallis principally relies. Lovelace recognized that the costs of raising a child conceived as the result of an unsuccessful tubal ligation were a proper item of damages in a medical malpractice action. The basis of liability in such cases is the physician’s breach of his professional duty to his patient. Thus, unlike the cause of action for contraceptive fraud proposed by Wallis, the cause of action in Lovelace did not depend on the establishment of standards of conduct governing freely-made sexual decisions between adults.
{28} Today, the Court establishes the principle that contraception is a non-delegable duty in New Mexico. I see nothing unfair in applying this rule to Wallis. Had Wallis bothered to investigate the state of the law prior to beginning a sexual relationship with Smith in April 1997, he would have learned that the overwhelming majority of jurisdictions considering the issue have refused to recognize a cause of action for economic damages stemming from contraceptive fraud/ breach of promise to practice birth control. The lesson of these cases is that sex partners are strictly liable for the support of any child they engender by voluntarily engaging in sexual activity. Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 4.11[e] (2000 Supp.). Thus, even accepting Wallis’ allegations that he extracted from Smith a commitment to practice birth control, Wallis would not have had a reasonable expectation that Smith’s statements about her use of contraceptives gave rise to legally-enforeeable rights.
{29} Lastly, Wallis concedes that his complaint alleges damages for purely economic loss. I express no opinion at this time as to whether privacy interests would outweigh other considerations so as to foreclose causes of action based upon tortiously-inflicted physical harm to a sex partner. See, e.g., Kathleen K. v. Robert B., 150 Cal.App.3d 992, 198 Cal.Rptr. 273 (1984) (holding that right of privacy should not bar cause of action based upon sex partner’s failure to advise other partner that he was infected with herpes).