Nanke v. Napier

• Decision Date: 11 April 1984
• Docket Number: No. 83-102,83-102
• Citation: 346 N.W.2d 520
• Parties: Anna M. NANKE, f/k/a Anna M. Smith, Appellant, v. John G. NAPIER, Appellee.
• Court: Iowa Supreme Court

Page 520

346 N.W.2d 520

Anna M. NANKE, f/k/a Anna M. Smith, Appellant, v. John G. NAPIER, Appellee.

No. 83-102.

Supreme Court of Iowa.

April 11, 1984.

Richard A. Knock of Mershon, Snow, Knock & Moothart, Cedar Falls, for appellant.

James E. Walsh, Jr., of Clark, Butler & Walsh, Waterloo, for appellee.

Considered by HARRIS, P.J., and McCORMICK, McGIVERIN, SCHULTZ and WOLLE, JJ.

McGIVERIN, Justice.

The sole question presented here is whether, under Iowa law, the parent of a normal healthy child may maintain an action to recover the expenses of rearing that child from a physician whose alleged negligence in performing a therapeutic abortion permitted the birth of the child. The trial court ruled that such expenses may not be recovered. We agree and affirm.

Plaintiff alleged in her petition that defendant, a physician, had negligently performed for compensation a therapeutic abortion which proximately resulted in the "wrongful birth" of a normal, healthy child on January 12, 1981.

In counts I and II of her petition, plaintiff sought recovery for elements of damages such as pain and suffering, medical expenses, lost wages and emotional distress resulting from the unsuccessful abortion. Count III of the petition sought recovery for the expenses of rearing the child through the child's eighteenth birthday.

Upon the defendant's pretrial motion to dismiss count III of the petition for failure to state a claim, Iowa R.Civ.P. 104(b), the trial court sustained the motion. The court reasoned that in an alleged "wrongful birth" case, "public policy simply should not allow recovery of the costs of rearing a normal, healthy child who is to remain with the parent."

Plaintiff then sought, and we granted, interlocutory appeal of the ruling.

The parties agree that the issue first stated above is one of initial impression in Iowa.

A motion to dismiss admits the truth of all well-pleaded issuable and relevant facts. Iowa Truck Center, Inc. v. Davis, 204 N.W.2d 630, 631 (Iowa 1973). Therefore, we assume the facts alleged in the petition to be true and use them as a basis for considering the legal question raised by defendant in his motion to dismiss.

I. Actions arising from birth of children. The term "wrongful birth" has been applied by other courts to claims arising out of a diverse array of factual situations. In an attempt to inject a proper understanding of the many variations of "wrongful birth" claims, courts and commentators have utilized new terms to place these subtle factual variations in focus.

Recent decisions have adopted an approach that recognizes three distinct claims: (1) "wrongful pregnancy" or "wrongful conception" as an action brought by the parents of a healthy, but unplanned, child against a physician who negligently performed a sterilization or abortion; (2) "wrongful birth" as a claim brought by parents of a child born with birth defects; and (3) "wrongful life" as a claim brought by the child suffering from such birth defects. Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296 n. 1 (1983); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 465, 656 P.2d 483, 487 (1983).

Under the above definitions, the factual situation involved in this case would more accurately be depicted as a claim for "wrongful pregnancy." We will regard plaintiff's petition in that context.

II. Claim for cost of rearing a child. The narrow question presented here, however, is whether plaintiff may recover as damages the costs of rearing a healthy child. This places us at a proverbial "fork in the road" for there are presently three separate paths down which courts have been travelling on this issue:

A. Complete Recovery of Child Rearing Costs. Very little authority exists for the view that a parent should be entitled to recover the full cost of rearing a healthy child. In subscribing to this approach, the court in Custodio v. Bauer, 251 Cal.App.2d 303, 324, 59 Cal.Rptr. 463, 477 (1967), said that upon a finding of a breach of duty the plaintiffs were entitled to recover an amount to "replenish the family exchequer so that the new arrival will not deprive the other members of the family of what was planned as their just share of the family income." This approach was also followed in Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976).

B. Child Rearing Costs Offset by the Benefits of Parenthood. A second approach taken by courts has been to permit recovery for the costs of child rearing but only for the amount of such costs which exceed the benefits received from parenthood such as the value of the child's aid, comfort, society and assistance. Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.1983); Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (predicting South Carolina law); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, leave to appeal denied, 385 Mich. 753 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).

These jurisdictions have utilized as an offset to the financial cost of rearing the child the "benefits" rule of the Restatement (Second) of Torts, § 920 (1979), which provides:

When the defendant's tortious conduct has caused harm to the plaintiff or his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.

C. Complete Bar to Recovery of Child Rearing Costs. A third approach, adopted by the majority of jurisdictions, completely bars recovery of child rearing costs. McNeal v. United States, 689 F.2d 1200 (4th Cir.1982) (interpreting Virginia law); White v. United States, 510 F.Supp. 146 (D.Kan.1981) (interpreting Georgia law); Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Fassoulas v. Ramey, --- So.2d ---- (Fla.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App.1980); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983) (reversing 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981)), cert. denied, --- U.S. ----, 104 S.Ct. 149, 78 L.Ed.2d 139 (1984); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Maggard v. McKelvey, 627 S.W.2d 44 (Ky.App.1981); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982). Cf. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (damages restricted to expenses in excess of the cost of the birth and rearing of a healthy child). See generally Handling Pregnancy and Birth Cases, pp. 156-74 (W. Winborne ed. 1983) (overview of claims for child rearing costs).

We adopt the majority approach and thus conclude that the costs of rearing a normal, healthy child cannot be recovered as damages to the parent or parents.

This conclusion is based on the public policy of Iowa which dictates that a parent cannot be said to have been damaged or injured by the birth and rearing of a normal, healthy child because the invaluable benefits of parenthood outweigh the mere monetary burdens as a matter of law. See Fassoulas v. Ramey, --- So.2d at ----; Terrell v. Garcia, 496 S.W.2d at 128. "That a child can be considered an injury offends fundamental values attached to human life.... Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization." Cockrum v. Baumgartner, 95 Ill.2d at 198, 69 Ill.Dec. at 172, 447 N.E.2d at 388-89. "The bond of affection between child and parent, the pride in a child's achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child's life." Beardsley v. Wierdsma, 650 P.2d at 293.

The awkwardness that would inevitably surface under the application of the Restatement (Second) § 920 "benefits" approach as a partial offset to the financial cost of rearing the child was accurately depicted in Cockrum:

It can be seen that permitting recovery then requires that the parents demonstrate not only that they did not want the child but that the child has been of minimal value or benefit to them. They will have to show that the child remains an uncherished, unwanted burden so as to minimize the offset to which the defendant is entitled. The court in Public Health Trust v. Brown (Fla.App.1980), 388 So.2d 1084, 1086 n. 4, convincingly noted: "The adoption of [the 'benefits' rule] would thus engender the unseemly spectacle of parents disparaging the 'value' of their children or the degree of their affection for them in open court. It is obvious, whether the conclusion is phrased in terms of 'public policy,' [citation] or otherwise, that such a result cannot be countenanced."

95 Ill.2d at 202, 69 Ill.Dec. at 173, 447 N.E.2d at 390.

Our ruling today is limited to the unique facts of this case and the narrow issue presented. We hold only that the parent of a normal, healthy child may not maintain an action to recover the expenses of rearing that child from a physician whose alleged negligence in performing a therapeutic abortion permitted the birth of such child. We...