Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/7

Rh For some time I have been disquieted by the lack of a standard by which we determine when to apply public policy and the lack of a meaningful definition by which we discover what constitutes public policy. This case involves wide-ranging social and economic issues which will affect parents and children for a number of years. Today we have invoked public policy with no true understanding of why it is applied or how it is discovered. The doctrine of public policy has not been built by accretion, but has experienced growth by eruption. I hope, at some later time, to be able to define standards for its use. Perhaps, in the meantime, our friends in academe will be of assistance by writing a deep and meaningful treatise on a suggested doctrine. While I cannot yet define when and why I would invoke public policy, I can define when I would not invoke public policy. I would not invoke the doctrine of public policy when there is no logical sense of conscience. While, in this case, I find many good policy reasons to support the view of the majority I find an equal number of policy reasons against that view. Therefore, I would not invoke the doctrine; instead, I would follow the common law.

The well written majority opinion correctly points out many of the holdings including those in Wisconsin and Texas. In Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W. 2d 243 (1974) and Terrell v. Garcia, 496 S.W. 2d 124 (Tex. Civ. App. 1973), there is the suggestion that the child be considered as worth its cost or else it be put up for adoption. Yet, many parents feel a moral sense of obligation to raise, as best they can, a child unwanted at conception. "A living child almost universally gives rise to emotional and spiritual bonds which few parents can bring themselves to break." Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 at 519 (1971). I can find no logical sense of conscience for a public policy which requires the mother to abort, put the child up for adoption, or else deprive the family members, including brothers and sisters, of their planned share of family income. "The compensation is not for the so-called unwanted child or 'emotional bastard' [see Case Note, 9 Utah Law Rev. 808 (1965)] but 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