Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/5

Rh Another line of cases has reached a compromise of sorts between those states that allow such damages and those that deny them. Recognizing that a child, although unwanted, is usually a joy, pleasure and benefit, these states allow recovery of expenses for raising the child but allow the jury to offset an award if they find the parents actually love the child and it is a "benefit" to them. Troppi v. Scarf, supra; Anonymous v. Hospital, supra; Mason v. Western Pennsylvania Hospital, supra; See RESTATEMENT (SECOND) OF TORTS § 920 (1979). Of course this view places the parents in the position of going before a jury and demonstrating they do not want the child in order to get a greater award. If they admit that the child is a welcome addition that will be loved, cherished, and properly raised, they may get nothing.

There is also the problem of the money recovered. Should it be kept by the parents for the sole use of the unwanted child or used by the whole family? One writer has suggested that a guardian ad litem should be appointed for the benefit of the child to see that the money recovered actually goes to the raising of the child. See Robertson, Civil Liability Arising from "Wrongful Birth" Following and Unsuccessful Sterilization Operation, supra, at 153.

In sifting through these decisions and studying the words and thoughts of judges and writers, it is understandable why the courts have reached different results. It is a question that searches the nature and validity of our civil law system which allows money damages to compensate for wrongs that are intangible, such as wrongful death or emotional anguish, things which cannot really be made right by money. Courts denying recovery because of "public policy" are bothered by the idea that a normal, healthy life should be the basis for compensable wrong. Wilczynski v. Goodman, supra.

We are persuaded for several reasons to follow those courts which have declined to grant damages for the expense of raising a child. It is a question which meddles with the concept of life and the stability of the family unit. Litigation cannot answer every question; every question cannot be