Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/4

242 The court also remarked that recovery should be denied because damages are too speculative and uncertain. Terrell v. Garcia, 496 S.W. 2d 124 (Tex. Civ. App. 1973), writ ref. N.R.E (Tex. 1974), ''cert. denied'' 415 U.S. 927 (1974). In Rieck v. Medical Protective Co., supra, the Wisconsin court viewed the issue as parents pursuing a claim for an unwanted child; they now choose to keep the child but transfer the cost of rearing the child to the doctor, creating a new category of surrogate parent. The Wisconsin Court decided in the final analysis it would be against public policy to allow such damages.

The question has been properly raised whether parents who do not want a child should place it up for adoption or abort the child's birth to mitigate their damages. See Ziernba v. Sternberg, supra (dissenting opinion). Parties are supposed to mitigate their damages. DOBBS, HANDBOOK ON THE LAW OF REMEDIES. But courts recognizing this cause of action have rejected the argument that parents should have to make such an election. See, e.g. Sherlock v. Stillwater Clinic, supra.

Examining the problem more deeply, authors have addressed the possible harm to the unwanted child referring to it, indelicately but realistically, as an "emotional bastard;" that is, a child who is unwanted by his family, one who will know some day that he was unwanted and whose cost of raising was paid for by another person. Shaheen v. Knight, supra; 50 CIN. L. REV. 65 (1981); Robertson, Civil Liability Arising from "Wrongful Birth" Following and Unsuccessful Sterilization Operation, 4 Am. J. of L. & M. No. 2, 131. One court has gone so far as to make the parents' name anonymous to protect the child. Anonymous v. Hospital, supra. Another court in its opinion excused the parents for filing the lawsuit, saying that no doubt they did so on principle, and not because the child was unwanted. Rieck v. Medical Protective Co., supra. One writer went so far as to suggest that the possible harm to the child might not be great when it discovered $50,000 was collected on its behalf. Bryan, Damages — The Not So "Blessed Event," 46 N.C. L. REV. 949, 952 (1968). So, the child's welfare has troubled all who have examined the problem.