Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/8

246 share of the family income." Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967).

A public policy which subtly encourages abortion or adoption, as today's holding necessarily does, is inconsistent with the stated goal of family stability and has no logical sense of conscience. Reference is made to the emotional damage of the child who finds out he or she was unwanted, but that emotional injury is no greater "than to be found in many families where 'planned parenthood' has not followed the blueprint." Custodio v. Bauer, supra. The expense of raising an unwanted and healthy child should not be considered as a matter of public policy when we will find that the same public policy allows us to hold that the parents of a deformed or diseased child are able to recover. This is inconsistent, see Mason v. Western Pennsylvania Hospital, Pa. Super., 428 A. 2d 1366 (1980), and demonstrates the consequence of invoking public policy without standards.

I would not invoke public policy in order to deny a cause of action against the common law rules of tort damages when there is no logical sense of conscience.

I recognize this is an extremely difficult case but rather than invoke public policy I would allow the cause of action and would allow the jury to reduce damages by the "benefit rule," § 920 Restatement of Torts (Second). It provides:

When the defendant's tortious conduct has caused harm to the plaintiff or to 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.

Thus, the jury in setting damages would be allowed to offset the value of the child's aid, comfort and society during the parents' life expectancy against the cost of rearing the unplanned child. See Sherlock v. Stillwater Clinic, 260 N.W. 2d 169 (Minn. 1977).

I am authorized to state that Chief Justice A joins in this opinion.