delivered the opinion of the court:
Plаintiffs, Darrell Pierce and Susan Pierce, filed suit against defendant, Dr. D. DeGracia, alleging breach of contract and negligence in the physician’s failure to properly perform a vasectomy on Darrell Pierce. The circuit court of Henry County dismissed certain allegations from the complaint, including those which sought damages for the expense of reаring the plaintiffs’ child born as a result of the failed vasectomy.
The plaintiffs made a mutual decision to limit the size of their family to two children. In order to effectuate their decision they agreed that the husband would have a vasectomy.
On February 4, 1977, thе defendant performed a vasectomy on Darrell Pierce. Thereafter, five sperm tests were evaluated by thе defendant, and in December of 1977 the defendant advised the plaintiffs that the vasectomy had been successful. On October 7,1979, a healthy male child was born to the plaintiffs.
The plaintiffs filed this action against the defendant for breach of contract and for medical negligence, requesting damages for the expenses incurred in the birth of the child, for the expensе of subsequent tubal ligation performed on Susan Pierce, for the costs of raising the child to majority, for the spreading of thе plaintiffs’ society, care, protection and support over a larger family group, for the loss of consortium while Susan Pierce carried the child, and for the loss of earnings by Susan Pierce during her pregnancy. In addition, the plaintiffs sought punitivе damages for the wilful and/or reckless conduct of the defendant.
A motion to dismiss was filed by the defendant and on June 8, 1981, the trial court dismissed all allegations in the complaint which sought punitive damages, damages for the expenses relating to the subsequent tubal ligation, damages for the expense of raising the child to majority, and damages relating to spreading plaintiffs’ sоciety, care, protection and support over a larger family group.
Leave to appeal was grаnted pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308).
The issue which has been raised for our review is whether the parents оf a healthy child born subsequent to an unsuccessful sterilization operation may recover damages for the expеnse of rearing that child to majority.
The recent case of Cockrum v. Baumgartner (1981),
The court, in an opinion authored by Justice Jiganti, held that dаmages should not be limited to pregnancy and birth-related costs but should include the full measure of damages proximately сaused by the physician’s negligence. Therefore, all expenses in raising the unplanned child to majority could be recoverable.
The court found that the case before them was indistinguishable from an ordinary medical malpractice action and applied the standard of damages in tort which attempts to place the injured parties in the position they would have been had no wrong occurred. Myers v. Arnold (1980),
The view that the birth of an unplanned yet healthy child is always a benefit outweighing all costs of raising the child was rejected by Cock-rum. The court stated that the rewards of parenthood should not be allowed in mitigation of the financial loss in raising a child, for such benefits do not affect the same interest which is harmed. The right of parents to control their reproductivity is a fundamental right, and neither the individuals involved nor society is harmed by the dеcision to limit family size.
Justice Linn, in a special concurring opinion, agreed that the parents of the unplanned child should be allowed to seek recompense for the costs of rearing that child to majority; however, he argued that the benefits derived from the parent-child relationship should not be ignored completely in weighing damages. Any potential bеnefits as a result of this relationship are factors the jury should be allowed to consider in assessing damages. Family size, family income, age of parents and marital status are all elements in the determination of potential benefits.
Justice Rоmiti, specially concurring, joined with Justice Linn to the extent of finding that the offsetting benefits of unplanned children should neither be excluded as a matter of law from the calculation of damages nor should they be held to automatically outweigh аll damages.
We agree with the reasoning of Justices Linn and Romiti in the Cockrum case. Their analysis would apply whether cоntract or tort damages are at issue.
Certainly the costs of rearing an unplanned child to majority are damages whiсh proximately flow from either the tort of medical negligence or the breach of contract by a physician who fails to properly perform a vasectomy. In assessing damages, the jury should be allowed to consider the potеntial benefits of the unplanned child which may accrue to the family interests. Parental age, marital status, family income, family size and the health of all family members are factors in this consideration. The possible benefits do not automaticаlly offset all damages nor are they to be completely ignored by the jury.
The only issue presented for our review relаtes to damages for the costs of raising the child to majority, the plaintiffs having abandoned any claim of error regarding оther elements of damages stricken by the trial court. For the foregoing reasons we reverse the judgment of the trial court which disallows the recovery of all costs relating to the rearing of the plaintiffs’ child to majority and remand this case fоr further proceedings consistent with the views expressed herein. In all other respects, the judgment of the trial court is affirmed.
Affirmed in part, reversed in part and remanded.
SCOTT, P. J., and ALLOY, J., concur.