The opinion of the court was delivered by PASHMAN, J.
In Gleitman v. Cosgrove, 49 N.J. 22 (1967), decided 12 years ago, this Court refused to recognize as valid causes of action either a claim for "wrongful life" asserted on behalf of a physically deformed infant or a claim for "wrongful birth" put forth by the infant's parents. Both prayers for relief were premised upon the allegation that had the physician treating Mrs. Gleitman during her pregnancy followed standard medical practice, an abortion would have been procured and the child would never have come into existence. In this case, we are called upon to assess the continued validity of both of our holdings in Gleitman.
On September 11, 1975, Paul and Shirley Berman, suing both in their own names and as Guardians ad litem for their infant daughter Sharon, instituted the present malpractice action against Ronald Allan and Michael Attardi, medical doctors licensed by the State of New Jersey. Two causes of action were alleged. The first, a claim for damages based upon "wrongful life," was asserted by Mr. Berman on behalf of the infant Sharon. The second, a claim denominated "wrongful birth," sought compensation for injuries suffered by the parents in their own right.
The factual allegations underlying each of these prayers for relief can be briefly summarized. From February 19 until November 3, 1974, Mrs. Berman, while pregnant with Sharon, was under the care and supervision of Drs. Allan and Attardi, both of whom are specialists in gynecology and obstetrics. At the time of her pregnancy, Mrs. Berman was 38 years of age. On November 3, Sharon was born afflicted with Down's Syndrome — a genetic defect commonly referred to as mongolism.
Plaintiffs allege that defendants deviated from accepted medical standards by failing to inform Mrs. Berman during her pregnancy of the existence of a procedure known as amniocentesis. This procedure involves the insertion of a long needle into a mother's uterus and the removal therefrom of a sample of amniotic fluid containing living fetal cells. Through "karyotype analysis" — a procedure in which the number and structure of the cells' chromosomes are examined — the sex of the fetus as well as the presence of gross chromosomal defects can be detected. See W. Fuhrmann F. Vogel, Genetic Counseling 91-94 (2d Ed. 1976); A. Emery, Elements of Medical Genetics 54-59 (3d Ed. 1974); Note, "Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling," 87 Yale L.J. 1488, 1493 n. 21 (1978). Prenatal diagnosis of genetic adnormalities is potentially available for approximately 60 to 90 metabolic defects, including Tay-Sachs Disease and Down's Syndrome. See Milunsky, "Prenatal Diagnosis of Genetic Disorders," 295 New Eng. J. Med. 377 (1976); Golbus, "The Antenatal Detection of Genetic Disorders," 48 Obstetrics Gynecology 497 (1976). Recent studies indicate that amniocentesis is highly accurate in predicting the presence of chromosomal defects, and that the risk of even minor damage to mother or fetus deriving from the procedure is less than one percent. See NICHD National Registry for Amniocentesis Study Group, "Midtrimester Amniocentesis for Prenatal Diagnosis," 236 J. Am. Med. A. 1471 (1976) (99.4% accuracy in 1,040 cases); Simpson, Dallaire, Miller, Siminovich, Hamerton, Miller McKeen, "Prenatal Diagnosis of Genetic Disease in Canada," 115 Canadian Med. A.J. 739 (1976) (99.4% accuracy in 1,223 cases).
Due to Mrs. Berman's age at the time of her conception, plaintiffs contend that the risk that her child, if born, would be afflicted with Down's Syndrome was sufficiently great that sound medical practice at the time of pregnancy required defendants to inform her both of this risk and the availability of amniocentesis as a method of determining whether in her particular case that risk would come to fruition. Had defendants so informed Mrs. Berman, the complaint continues, she would have submitted to the amniocentesis procedure, discovered that the child, if born, would suffer from Down's Syndrome, and had the fetus aborted.
As a result of defendants' alleged negligence, the infant Sharon, through her Guardian ad litem, seeks compensation for the physical and emotional pain and suffering which she will endure throughout life because of her mongoloid condition. Mr. and Mrs. Berman, the child's parents, request damages in their own right both for the emotional anguish which they have experienced and will continue to experience on account of Sharon's birth defect, and the medical and other costs which they will incur in order to properly raise, educate and supervise the child.
On November 4, 1977, the trial judge granted summary judgment in favor of defendants on the ground that plaintiffs had failed to state any actionable claim for relief. In his view, Gleitman v. Cosgrove, supra, was dispositive of the issues presented. On December 22, 1977, plaintiffs filed a notice of appeal to the Appellate Division. While the matter was pending before the appellate judges, we directly certified the case to this Court on our own motion. See R. 2:12-1.
I
Before addressing the merits of the various contentions put forth by the parties, it is important to emphasize the procedural posture in which the present controversy reaches us. Plaintiffs' complaint was dismissed before trial for failure to state a valid cause of action. As such, we must accept as true each and every element of that complaint and construe all reasonable inferences flowing from plaintiffs' allegations in a light most favorable to their cause. See, e.g., Heavner v. Uniroyal, Inc., 63 N.J. 130 , 133-134 (1973); Melone v. Jersey Central Power Light Co., 18 N.J. 163 , 170 (1955).
Specifically, we must assume that at the time of pregnancy: (1) defendants failed to inform Mrs. Berman of the availability of amniocentesis; (2) this failure to inform constituted a departure from acceptable medical practice; (3) had she been informed, Mrs. Berman would have submitted to amniocentesis; (4) the results of the procedure would have indicated that the child, if born, would be afflicted with Down's Syndrome; and (5) upon being notified of this fact, she would have had the fetus aborted. Our sole inquiry is whether any or all plaintiffs would be entitled to damages should they substantiate each of the above allegations at trial.
II
The claim for damages asserted on behalf of the infant Sharon has aptly been labeled a cause of action grounded upon "wrongful life." Sharon does not contend that absent defendants' negligence she would have come into the world in a normal and healthy state. There is no suggestion in either the pleadings below or the medical literature which we have scrutinized that any therapy could have been prescribed which would have decreased the risk that, upon birth, Sharon would suffer from Down's Syndrome. Rather, the gist of the infant's complaint is that had defendants informed her mother of the availability of amniocentesis, Sharon would never have come into existence.
As such, this case presents issues different from those involved in malpractice actions where a plaintiff asserts that a defendant's deviation from sound medical practices increased the probability that an infant would be born with defects. See, e.g., Sylvia v. Gobeille, 101 R.I. 76 , 220 A.2d 222 (Sup.Ct. 1966). Nor are we here confronted with a situation in which an individual's negligence while a child was in gestation caused what otherwise would have been a normal and healthy child to come into the world in an impaired condition. See, e.g., Smith v. Brennan, 31 N.J. 353 (1960); W. Prosser, Law of Torts § 55 at 335-338 (4th Ed. 1971). Here, defendants' alleged negligence neither caused the mongoloid condition nor increased the risk that such a condition would occur. In the words of the Gleitman majority, "the infant plaintiff [asserts] . . . not that [she] should have been born without defects but [rather] that [she] should not have been born at all . . ." 49 N.J. at 28. In essence, Sharon claims that her very life is "wrongful."
The Gleitman majority refused to recognize as valid a cause of action predicated upon wrongful life. Its main reason for so holding was that damages would be impossible to ascertain. See 49 N.J. at 28-29; id. at 63 (Weintraub, C.J., concurring and dissenting).
The primary purpose of tort law is that of compensating plaintiffs for the injuries they have suffered wrongfully at the hands of others. As such, damages are ordinarily computed by "comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence." Id. at 28; see generally, W. Prosser, supra, § 55 at 335-338; Note, "Wrongful Life and A Fundamental Right to be Born Healthy," 27 Buffalo L. Rev. 537, 555-559 (1978). In the case of a claim predicated upon wrongful life, such a computation would require the trier of fact to measure the difference in value between life in an impaired condition and the "utter void of nonexistence." Gleitman, supra, 49 N.J. at 28. Such an endeavor, however, is literally impossible. As Chief Justice Weintraub noted, man, "who knows nothing of death or nothingness," simply cannot affix a price tag to non-life. Id. at 63 (Weintraub, C.J., concurring dissenting). See, e.g., Gildiner v. Thomas Jefferson Univ. Hospital, 451 F. Supp. 692 , 694 (E.D. Pa. 1978); Elliot v. Brown, 361 So.2d 546, 547-549 (Ala.Sup.Ct. 1978); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652, 656-657 (Dist.Ct. App. 1976); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S. 2d 895, 386 N.E.2d 807 (Ct.App. 1978); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372, 375-376 (Sup.Ct. 1975); Note, "Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life," 1978 Duke Law Journal, 1401, 1445. See generally, Note, supra, 27 Buffalo L. Rev. at 555-559.
Nevertheless, although relevant to our determination, we would be extremely reluctant today to deny the validity of Sharon's complaint solely because damages are difficult to ascertain. The courts of this and other jurisdictions have long held that where a wrong itself is of such a nature as to preclude the computation of damages with precise exactitude, it would be a "perversion of fundamental principles of justice to deny all relief to the injured [party], and thereby relieve the wrongdoer from making any amend for his acts." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548 (1931); see, e.g., Martin v. Bengue, Inc., 25 N.J. 359, 373 (1957); Jenkins v. Pennsylvania R.R. Co., 67 N.J.L. 331, 334 (E A 1902). To be sure, damages may not be determined by mere speculation or guess and, as defendants emphasize, placing a value upon non-life is not simply difficult — it is humanly impossible. Nonetheless, were the measure of damages our sole concern, it is possible that some judicial remedy could be fashioned which would redress plaintiff, if only in part, for injuries suffered. See, e.g., Kashi, "The Case of the Unwanted Blessing: Wrongful Life," 31 U. Miami L. Rev. 1409 (1977); Note, "A Cause of Action for `Wrongful Life,'" 55 Minn. L. Rev. 58 (1970).
Difficulty in the measure of damages is not, however, our sole or even primary concern. Although we conclude, as did the Gleitman majority, that Sharon has failed to state an actionable claim for relief, we base our result upon a different premise — that Sharon has not suffered any damage cognizable at law by being brought into existence. See, e.g., Becker v. Schwartz, supra, 46 N.Y.2d at 411, 413 N.Y.S.2d at 900, 386 N.E.2d at 812; Note, supra, 87 Yale L.J. at 1500-1502.
One of the most deeply held beliefs of our society is that life — whether experienced with or without a major physical handicap — is more precious than non-life. See In re Quinlan, 70 N.J. 10, 19 n. 1 (1976). Concrete manifestations of this belief are not difficult to discover. The documents which set forth the principles upon which our society is founded are replete with references to the sanctity of life. The federal constitution characterizes life as one of three fundamental rights of which no man can be deprived without due process of law. U.S. Const., Amends. V and XIV. Our own state constitution proclaims that the "enjoying and defending [of] life" is a natural right. N.J. Const. (1947), Art. I, § 1. The Declaration of Independence states that the primacy of man's "unalienable" right to life is a "self-evident truth." Nowhere in these documents is there to be found an indication that the lives of persons suffering from physical handicaps are to be less cherished than those of non-handicapped human beings.
State legislatures — and thus the people as a whole — have universally reserved the most severe criminal penalties for individuals who have unjustifiably deprived others of life. Indeed, so valued is this commodity that even one who has committed first degree murder cannot be sentenced to death unless he is accorded special procedural protections in addition to those given all criminal defendants. See, e.g., Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Moreover, it appears that execution is constitutionally impermissible unless the crime which a defendant has perpetrated was one which involved the taking of another's life. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982, 989 (1977). Again, these procedural protections and penalties do not vary according to the presence or absence of physical deformities in the victim or defendant. It is life itself that is jealously safeguarded, not life in a perfect state.
Finally, we would be remiss if we did not take judicial notice of the high esteem which our society accords to those involved in the medical profession. The reason for this is clear. Physicians are the preservers of life.
No man is perfect. Each of us suffers from some ailments or defects, whether major or minor, which make impossible participation in all the activities the world has to offer. But our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe.
We recognize that as a mongoloid child, Sharon's abilities will be more circumscribed than those of normal, healthy children and that she, unlike them, will experience a great deal of physical and emotional pain and anguish. We sympathize with her plight. We cannot, however, say that she would have been better off had she never been brought into the world. Notwithstanding her affliction with Down's Syndrome, Sharon, by virtue of her birth, will be able to love and be loved and to experience happiness and pleasure — emotions which are truly the essence of life and which are far more valuable than the suffering she may endure. To rule otherwise would require us to disavow the basic assumption upon which our society is based. This we cannot do.
Accordingly, we hold that Sharon has failed to state a valid cause of action founded upon "wrongful life."
III
The validity of the parents' claim for relief calls into play considerations different from those involved in the infant's complaint. As in the case of the infant, Mr. and Mrs. Berman do not assert that defendants increased the risk that Sharon, if born, would be afflicted with Down's Syndrome. Rather, at bottom, they allege that they were tortiously injured because Mrs. Berman was deprived of the option of making a meaningful decision as to whether to abort the fetus, see Gleitman, supra, 49 N.J. at 63-65 (Weintraub, C.J., concurring dissenting) — a decision which, at least during the first trimester of pregnancy, is not subject to state interference, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). They thus claim that Sharon's "birth" — as opposed to her "life" — was wrongful.
Two items of damage are requested in order to redress this allegedly tortious injury: (1) the medical and other costs that will be incurred in order to properly raise, supervise and educate the child; and (2) compensation for the emotional anguish that has been and will continue to be experienced on account of Sharon's condition.
The Gleitman majority refused to recognize as valid a cause of action grounded upon wrongful birth. Two reasons underlay its determination. The first related to measure of damages should such a claim be allowed. In its view,
In order to determine [the parents'] compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is . . . impossible to perform. . . .
[ 49 N.J. at 29]
Second, even though the Court's opinion was premised upon the assumption that Mrs. Gleitman could have legally secured an abortion, the majority concluded that "substantial [public] policy reasons" precluded the judicial allowance of tort damages "for the denial of the opportunity to take an embryonic life." 49 N.J. at 30.
In light of changes in the law which have occurred in the 12 years since Gleitman was decided, the second ground relied upon by the Gleitman majority can no longer stand in the way of judicial recognition of a cause of action founded upon wrongful birth. The Supreme Court's ruling in Roe v. Wade, supra, clearly establishes that a woman possesses a constitutional right to decide whether her fetus should be aborted, at least during the first trimester of pregnancy. Public policy now supports, rather than militates against, the proposition that she not be impermissibly denied a meaningful opportunity to make that decision.
As in all other cases of tortious injury, a physician whose negligence has deprived a mother of this opportunity should be required to make amends for the damage which he has proximately caused. Any other ruling would in effect immunize from liability those in the medical field providing inadequate guidance to persons who would choose to exercise their constitutional right to abort fetuses which, if born, would suffer from genetic defects. See Note, supra, 87 Yale L.J. at 1504-1508; see, e.g., Gildiner, supra, 451 F. Supp. at 696 ; Dumer, supra, 233 N.W.2d at 376-377; Jacobs v. Theimer, 519 S.W.2d 846, 849 (Sup.Ct. Tex. 1975). See generally, Note, "Wrongful Conception: Who Pays For Bringing Up the Baby?," 47 Fordham L. Rev. 418, 419-422 (1978). Accordingly, we hold that a cause of action founded upon wrongful birth is a legally cognizable claim.
Troublesome, however, is the measure of damages. As noted earlier, the first item sought to be recompensed is the medical and other expenses that will be incurred in order to properly raise, educate and supervise the child. Although these costs were "caused" by defendants' negligence in the sense that but for the failure to inform, the child would not have come into existence, we conclude that this item of damage should not be recoverable. In essence, Mr. and Mrs. Berman desire to retain all the benefits inhering in the birth of the child — i.e., the love and joy they will experience as parents — while saddling defendants with the enormous expenses attendant upon her rearing. Under the facts and circumstances here alleged, we find that such an award would be wholly disproportionate to the culpability involved, and that allowance of such a recovery would both constitute a windfall to the parents and place too unreasonable a financial burden upon physicians. See, e.g., Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242, 244-245 (Sup. Ct. 1974); Coleman v. Garrison, 349 A.2d 8 (Sup.Ct. Del. 1975).
The parents' claim for emotional damages stands upon a different footing. In failing to inform Mrs. Berman of the availability of amniocentesis, defendants directly deprived her — and, derivatively, her husband — of the option to accept or reject a parental relationship with the child and thus caused them to experience mental and emotional anguish upon their realization that they had given birth to a child afflicted with Down's Syndrome. See generally, Note, supra, 1978 Duke Law Journal at 1453. We feel that the monetary equivalent of this distress is an appropriate measure of the harm suffered by the parents deriving from Mrs. Berman's loss of her right to abort the fetus. See Gleitman, supra, 49 N.J. at 64-65 (Weintraub, C.J., concurring dissenting).
Unlike the Gleitman majority, we do not feel that placing a monetary value upon the emotional suffering that Mr. and Mrs. Berman have and will continue to experience is an impossible task for the trier of fact. In the 12 years that have elapsed since Gleitman was decided, courts have come to recognize that mental and emotional distress is just as "real" as physical pain, and that its valuation is no more difficult. Consequently, damages for such distress have been ruled allowable in an increasing number of contexts. See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399 (1973); Falzone v. Busch, 45 N.J. 559 (1965); Muniz v. United Hospitals Medical Center Presbyterian Hospital, 153 N.J. Super. 79 (App.Div. 1977); Lemaldi v. DeTomaso of America, Inc., 156 N.J. Super. 441 (Law Div. 1978); W. Prosser, Law of Torts § 54 at 327-335 (4th Ed. 1971). Moreover, as discussed in Part II ante, to deny Mr. and Mrs. Berman redress for their injuries merely because damages cannot be measured with precise exactitude would constitute a perversion of fundamental principles of justice. See supra at 428.
Consequently, we hold that Mr. and Mrs. Berman have stated actionable claims for relief. Should their allegations be proven at trial, they are entitled to be recompensed for the mental and emotional anguish they have suffered and will continue to suffer on account of Sharon's condition.
Accordingly, the judgment of the trial court is affirmed in part and reversed in part, and this case remanded for a plenary trial.