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Wallis v. Smith3/1/2001
nduct in reproductive relationships-one of the most important and private forms of interpersonal relations. In the absence of a clear balance favoring the imposition of legal duties of disclosure in reproductive relations between competent adult sex partners, candor in reproductive matters should be left to the ethics of the participants.
here are still many immoral acts which do not amount to torts, and the law has not yet enacted the golden rule. It is impossible to afford a lawsuit for every deed of unkindness or betrayal, and there is much evil in the world which must necessarily be left to other agencies of social control. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts § 4 at 22 (5th ed.1984).
In my view, Wallis has failed to demonstrate a clear balance in favor of recognition of a cause of action for contraceptive fraud/breach of promise to practice birth control.
As the majority notes, the present case is materially distinguishable from Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991), a case on which Wallis principally relies. Lovelace recognized that the costs of raising a child conceived as the result of an unsuccessful tubal ligation were a proper item of damages in a medical malpractice action. The basis of liability in such cases is the physician's breach of his professional duty to his patient. Thus, unlike the cause of action for contraceptive fraud proposed by Wallis, the cause of action in Lovelace did not depend on the establishment of standards of conduct governing freely-made sexual decisions between adults.
Today, the Court establishes the principle that contraception is a non-delegable duty in New Mexico. I see nothing unfair in applying this rule to Wallis. Had Wallis bothered to investigate the state of the law prior to beginning a sexual relationship with Smith in April 1997, he would have learned that the overwhelming majority of jurisdictions considering the issue have refused to recognize a cause of action for economic damages stemming from contraceptive fraud/breach of promise to practice birth control. The lesson of these cases is that sex partners are strictly liable for the support of any child they engender by voluntarily engaging in sexual activity. Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 4.11 (2000 Supp.). Thus, even accepting Wallis' allegations that he extracted from Smith a commitment to practice birth control, Wallis would not have had a reasonable expectation that Smith's statements about her use of contraceptives gave rise to legally-enforceable rights.
Lastly, Wallis concedes that his complaint alleges damages for purely economic loss. I express no opinion at this time as to whether privacy interests would outweigh other considerations so as to foreclose causes of action based upon tortiously-inflicted physical harm to a sex partner. See, e.g., Kathleen K. v. Robert B., 198 Cal. Rptr. 273 (Ct. App. 1984) (holding that right of privacy should not bar cause of action based upon sex partner's failure to advise other partner that he was infected with herpes).
A. JOSEPH ALARID, Judge
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