¶1concurring in part and dissenting in part, joined by SIMMS, Justice.
¶2I concur in the Court’s conclusion that a plaintiff in a medical malpractice action for a failed sterilization may not recover the costs of raising the unplanned child as an element of damages. I disagree, however, with the Court’s determination that there is a cause of action for a failed sterilization which results in the birth of a normal, healthy child. Because I would not recognize the tort of a failed sterilization, I respectfully dissent.
¶3In my view, the birth of a healthy, albeit unwanted child, is not a wrong even if negligent conduct contributed to the eventual birth. Where is the injury and resulting damages in the birth of a normal, healthy child? I find none. And if there are some, I would not want to speculate. For it would appear to me, the future benefits these parents will later receive from this child will far exceed their present imaginary damages. The birth of a normal, healthy child is a blissful, not an injurious or damaging event.
¶4I would adopt the minority position as espoused by the Nevada Supreme Court in Szekeres By Szekeres v. Robinson, 715 P.2d 1076 (Nev.1986). This court held a negligence action may not be maintained unless one has suffered injury or damage, and the birth of a normal, healthy child is not legal compensable damages in tort.
¶5*190The Nevada court further stated that if there are no damages, the negligence is not actionable under the principles of common law negligence, citing Restatement (Second) of Torts, § 328A (1965). Similarly, under Oklahoma law, a negligence action may not be maintained unless the plaintiff has sustained injury inasmuch as injury is an essential element for the claim. Sloan v. Owen, 579 P.2d 812, 814 (1977). Because normal birth is not a civil wrong, it cannot give rise to tort liability in negligence. I recede from the Court’s recognition of a negligence action for the reason that public policy compels the conclusion that a parent cannot be said to be damaged by the birth of a normal, healthy child.
¶6I, nevertheless, acknowledge the realities of a plaintiff’s predicament in this type of case. In my view, the bar against a negligence action does not absolve the defendant from all liability under any theory of law. Rather, I would recognize the viability of a contract action. Cf. Seanor v. Browne, 154 Okl. 222, 7 P.2d 627 (1932). In discussing contract liability the Szekeres case explained:
“[I]f a physician or someone else is found to have contracted to prevent a pregnancy from occurring, certainly it was within the contemplation of the contracting parties that failure to carry out the process in the manner promised would result in an award, at least, of the costs of medical, surgical and hospital care associated with the failed surgery. In such a case damages could be awarded in accordance with what was contemplated by the parties at the time the contract was made.” Id. at 1079.
¶7In summary, human life has always been accorded a special place in our jurisprudence. Because the birth of a child is not a wrong to be legally redressed I cannot find, in light of long-standing common law principles of tort law, the existence of a negligence action. In so concluding, however, I would permit a breach of contract claim, disallowing damages flowing from the birth of a normal child.
¶8I therefore respectfully dissent from the portion of the Court’s opinion which recognizes the viability of a medical malpractice action for a failed sterilization.
¶9with whom KAUGER, Justice, joins, concurring in part and dissenting in part.
¶10I concur in Part II of the court’s opinion which holds that in a medical malpractice action to recover for a failed sterilization the plaintiff does not have a duty to mitigate damages by undergoing an abortion or placing the unplanned child for adoption. I dissent from Part I which pronounces that the wronged patient may not recover damages equal to the costs of raising the healthy but unintended offspring. I disagree with Justice Hodges’ conclusion that the plaintiff’s sole remedy lies in an action for breach of contract.
¶11It must be noted at the outset that in suits arising from a failed sterilization damages are sought for the physician’s substandard performance of a surgical procedure designed to prevent a woman from being able to conceive. The disputes here *191before us bear no legal or logical resemblance to those which may be spawned in the aftermath of a surgical or medical interruption of pregnancy by abortion.
¶12In my view the parent’s recovery should extend to:
(1) the costs of a failed sterilization procedure and of a repeated surgery, should the plaintiff desire to undergo another operation to correct the former, and damages for pain and suffering,
(2) compensation for the plaintiff’s mental and emotional distress, loss of consortium, lost wages, and hospital and medical expenses incident to pregnancy, labor, prenatal and postnatal care, together with
(3) the costs of raising the child to majority.
¶13These elements of damage are, of course, subject to being offset (a) by the anticipated monetary contribution the parents may receive from the child after it reaches majority and (b) by the emotional or other benefits, if any be shown, the parents are likely to derive from the companionship and love of the child.
¶14Procreative self-determination is rooted in the constitutional shield of privacy.
¶15Both federal and state governments foster the exercise of procreative self-determination through an extensive network of family planning programs. The Family Planning Services and Population Research *192Act of 1970 authorizes federal funding for family planning services, education, and research concerning contraceptive development.
¶16Everyday, millions of people throughout this Nation exercise their protected liberty interest in procreative self-determination by the use of contraceptives. These people use contraceptives because they choose not to have children, healthy or otherwise.
¶17A physician’s failure to accomplish a successful sterilization procedure directly causes the parents to put forth a substantial amount of money and emotional energy to discharge a familial responsibility to which they had already decided not to allot any of their available resources.
¶18An award of child-rearing costs is consistent with public interest in minimizing substandard medical practice. It would provide an incentive for physicians to take greater care when performing sterilization procedures. Great violence is done to the law’s symmetry that places like interests under the same rubric when a limited recovery is fashioned for the harm from one particular type of medical procedure. There is no basis for the conclusion that want of due care in sterilizations deserves lesser quantum of compensation than negligent performance of other medical procedures.
¶19*193Procreative self-determination deserves complete judicial protection as a value firmly anchored on the constitutional guarantee of privacy. A meaningful shield for this liberty violates no espoused principle of public policy. On the contrary, it is consistent with both federal and state legislation and with contemporary societal mores. Recovery of child-rearing costs does no discredit to the value of human life. It compensates the injured party for the diversion and diminution that family resources suffer because of a physician’s professional negligence.
¶20. A majority of states have recognized a tort action for unsuccessful sterilization. In those jurisdictions, the plaintiff does not stand confined to the breach-of-contract remedy. See Jackson v. Bumgardner, 318 N.C. 172,347 S.E.2d 743, 747, footnote 2 [1986]. Jacksonallowed recovery for a physician’s failure to replace an IUD during surgery for an ovarian cyst. The court found no basis for placing medical procedures related to birth control into a distinct tort category that warrants less legal protection than that which is accorded other medical procedures.
¶21It is quite possible that an ex contractu claim might support many, if not all, of the same elements of damage that a tort action would yield. By the teaching of Hadley v. Baxendate, 9 Ex. 341, 354, 156 Eng.Rep. 145, 154 [1854], a* contractu recovery is allowed for those damages which "may fairly and reasonably be considered arising naturally, i.e., according to the usual course of things, from such breach of contract itself." In the circumstances of a failed sterilization, it is clearly foreseeable that (a) if the defendant-physician were negligent in the performance of a birth-prevention procedure, the plaintiff would likely become pregnant, and that (b) no patient willing to undergo surgical sterilization would be desirous of having a child. The expense of raising the unplanned child is hence a foreseeable consequence of a failed sterilization procedure.
¶22. Sterilization means any procedure by which an individual is rendered incapable of reproduction, while abortion means the premature expulsion from the uterus of the products of conception. See, Dorland’s Illustrated Medical Dictionary, 23rd ed. (Philadelphia: W.B. Saunders Company, 1957), pp. 4 and 1302.
¶23"Tubal ligation is the most commonly employed sterilization procedure for women. It generally, but not always, results in sterility. Where pregnancy occurs following an unsuccessful attempt at sterilization, a cause of action may lie for wrongful conception or wrongful pregnancy, based on negligence or breach of contract -” See, Medical and Hospital Law, infra note 4 at p. 19-4.
¶24. The monetary-contribution offset is likely to be minimal since there are many welfare and retirement programs which provide for support of parents in their later years. See also, Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 518 [1971], where the court remarked that "[tjhere is a growing recognition that the financial ‘services: which parents can expect from their offspring are largely illusory.” Troppiallowed the plaintiff to recover child-raising expenses for a healthy infant against a pharmacist who negligently filled a birth control prescription.
¶25The love-and-companionship offset consists of the same elements as those for which parents may recover in actions for the wrongful death of a child. See, 12 O.S. 1981 § 1055.
¶26. See Roe v. Wade, 410 U.S. 113, 152-156, 93 S.Ct. 705, 726-728, 35 L.Ed.2d 147 [1973] and Griswold v. State of Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 [1965]; see also, Sherlock v. Stillwater Clinic, infra note 5 at 175.
¶27“Competent [£«i juris ] women have a constitutionally protected right to voluntary sterilization. Sterilization is a legal and medically accepted method of birth control which carries no civil or criminal liabilities for its performance. A state may not restrict voluntary sterilization without proving a compelling need to do so. This right to sterilization comes within a woman’s fundamental right to privacy in matters of reproduction — ” [Emphasis supplied.] S. Sandy Sanbar, M.D., Ph.D., J.D., Medical and Hospital Law [Oklahoma City: Law of Medicine Publications, 1987], p. 19-4.
¶28. See, Ochs v. Borelli, 187 Conn. 253, 445 A.2d 883, 885 [1982] (in an action for negligent tubal ligation parents recovered full child-rearing costs instead of compensation limited to mild birth defect); Troppi v. Scarf, supra note 3, 187 N.W.2d at 517; Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175 [Minn.1977] (parents entitled to costs of raising a healthy child in an action for negligent performance of vasectomy); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496, 499 [1976] (parents could recover child-rearing expenses for a healthy child in an action arising from negligent tubal ligation). See also Annot., Tort Liability For Wrongfully Causing One To Be Born, 83 ALR3d 15, §§ 21-25 [1978].
¶29. 42 U.S.C. §§ 300 et seq. [1982].
¶32. Troppi v. Scarf, supra note 3, 187 N.W.2d at 517.
¶33. University of Ariz v. Superior Court, 136 Ariz. 579, 667 P.2d 1294, 1299 [1983] (parents recovered child-raising expenses for a healthy child in an action to recover for negligent performance of vasectomy).
¶34. Sherlock v. Stillwater Clinic, supranote 5 at 175.
¶35. Troppi v. Scarf, supra note 3, 187 N.W.2d at 513.
¶36. University of Ariz. v. Superior Court, supranote 10 at 1300; Sherlock v. Stillwater Clinic, supranote 5 at 175 and Troppi v. Scarf, supra note 3, 187 N.W.2d at 514.
¶37. Sherlock v. Stillwater Clinic, supranote 5 at 175 and Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 [1976] (the mother was allowed to recover child-rearing expenses for a healthy infant in her action for a negligently performed abortion).
¶38. Sherlock v. Stillwater Clinic, supranote 5 at 175.
¶39. Jones v. Malinowski, infra note 19 at 436.
¶40. Sherlock v. Stillwater Clinic, supranote 5 at 173.
¶41. Ochs v. Borelli, supra note 5 at 445 A.2d 885-886.
¶42.Jones v. Malinowski, 299 Md. 257, 473 A.2d 429, 435 [1984] (parents allowed compensation for raising a healthy child in an action for negligent tubal laparoscopy).