## Facts

- Carole Burke, already the mother of three children and under financial strain, sought permanent sterilization to avoid having more children and to return to work.
- Mrs. Burke consulted Dr. Elliot Rivo, an obstetrician-gynecologist, about sterilization; the plaintiffs alleged he recommended bipolar cauterization tubal ligation and guaranteed it would prevent future pregnancy.
- Dr. Rivo performed a laparoscopic bilateral tubal ligation by bipolar cauterization in February 1984.
- In June 1985, a pregnancy test confirmed Mrs. Burke was pregnant; she gave birth to a fourth child in February 1986.
- The child was normal and healthy; the parents claimed the pregnancy and birth were unintended and economically harmful.
- The plaintiffs asserted two theories: negligence in performing the sterilization and breach of a guarantee of sterility.
- The trial court reported a question of law under Mass. R. Civ. P. 64 concerning the proper measure of damages; liability had not been determined.

## Issues

1. What categories of damages are recoverable when a negligently performed sterilization or breach of a sterility guarantee results in the birth of a normal, healthy child?
2. Specifically, may parents recover the reasonable costs of raising the child to adulthood, and if so, must those costs be reduced by the benefits of having the child?

## Decision

- The Supreme Judicial Court held that, if liability is proved, parents may recover the reasonable costs of rearing the child to adulthood as a component of damages.
- Any award for child-rearing costs must be reduced by the benefit, if any, the parents receive or will receive from having the child.
- The court answered the reported question and remanded for further proceedings; it did not decide negligence, breach, or the amount of damages on the facts.

## Legal Principles

- Damages in negligence and breach of contract generally aim to place the plaintiff in as good a position as if the wrong had not occurred, so far as money can do so.
- In failed-sterilization or wrongful pregnancy actions involving a normal, healthy child, foreseeable economic consequences may include the reasonable costs of raising the child to adulthood.
- The “benefit rule” permits reduction of damages by benefits caused by the same conduct; child-rearing damages must therefore be offset by the value of benefits of parenthood the parents actually experience.
- Public policy does not categorically bar child-rearing damages merely because the child is healthy; the actionable wrong is the physician’s alleged negligence or breach, not the child’s existence.

## Conclusion

Massachusetts permits recovery of child-rearing expenses to adulthood for the birth of a normal, healthy child following an allegedly negligent sterilization or breached guarantee, but requires the trier of fact to offset those costs by the benefits of having the child; the case was remanded because liability and damages remained to be proved.


Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (Mass. 1990)