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HARNICHER v. UNIV. OF UTAH MEDICAL CENTER7/31/1998
t and the majority appear convinced that the loss of an unassailable assurance that one's children carry one's genes is of negligible value. Such a conviction is belied by the extraordinary lengths to which thousands of people in this era will go to pursue biological parenthood. See generally Infertility: Diagnosis and Management 17-19, 23 (James Aiman ed., 1984).
Some women will choose not to have children if they cannot honestly believe (whether the belief is accurate or not) that those children are biologically linked to their husbands; in fact, that was the objective of the in vitro procedure recommended to the Harnichers, as well as Dr. Urry's advice that donor 183 be selected for the donor mix because of his matching blood type and physical resemblance. Mrs. Harnicher testified that she was one of those women who only wanted children if there was a biological link to her husband, and I cannot concede that her choice is illegitimate because I, or any other judge, might view it as misguided. The majority reflects its failure to understand this point when it observes that "the Harnichers' assertion that David did not want children unless they were biologically his own is belied by the couple's knowing consent to the use of donor sperm." This misstates the Harnichers' claim — they have only asserted that they did not want children unless it would be highly unlikely that they would ever know that their child was not biologically David's, thus permitting the assumption of biological continuity. The use of donor sperm from a closely-matched donor, when mixed with David's, would not interfere with their objective; that is precisely why the University staff recommended the procedure, and the reason the Harnichers consented to it.
In addition to the flaws in the majority opinion's characterization of the Harnichers' claims, there are analytic problems with its application of the Restatement standard to the facts. Section 313, which this court has adopted, specifies liability for negligent infliction of emotional distress for "illness or bodily harm." I take the position first, that mental illness of an incapacitating severity — standing alone and unassociated with so-called "physical" symptoms or findings — qualifies as "illness" within the meaning of that section, and second, that even if the standard is read to mean "illness with some bodily harm" (which is in fact how the majority opinion seems to read it), there is evidence in the record to get past summary judgment on the Harnichers' damages.
As to the first question — whether mental illness standing alone qualifies as "illness" within the meaning of the Restatement — I find it anomalous that this court would be willing to deny the possibility in this era of awareness about the severe impact of mental disability on the texture and quality of human life. Any number of conditions associated with mental illness can be incapacitating
without any overt "bodily" manifestations, as, for example, clinical depression, anxiety disorders and panic response, obsessive-compulsive disorders, and eating disorders, to name a few. "Suffering," as is increasingly understood by medicine, is not a phenomenon in which the physical and the mental sources and causes of pain may be readily differentiated. See generally Eric J. Cassell, The Nature of Suffering and The Goals of Medicine (1991) (arguing that suffering — the quintessential feature of sickness — cannot be analyzed or relieved). Likewise, it is not the case that we refuse in our tort system to attempt quantification and compensation for suffering that has a mental or emotional component. Indeed we undertake such a calculus regularly in wrongful death and personal injury contexts.
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