Petrella,*fn1 O'Brien and Stern. The opinion of the court was delivered by O'Brien, J.A.D. Stern, J.A.D., dissenting.
Plaintiff appeals from a summary judgment in favor of defendant. In her complaint, she asserted a variety of claims against defendant arising out of his false representation to her that he had had a vasectomy, on the basis of which she engaged in sexual intercourse with him resulting in the birth of a normal, healthy child. In granting summary judgment to defendant the trial judge ruled that, except for a paternity claim pursuant to N.J.S.A. 9:17-38 et seq., and R. 5:14-1 et seq., plaintiff had no independent cause of action for damages in this State. We agree and affirm.
On December 5, 1987, plaintiff gave birth to a normal, healthy child. By order of October 17, 1988, the Family Part of the Chancery Division declared defendant the father of that child (by agreement on the record in open court under oath). Defendant was ordered to pay $95 per week support for the child, to obtain Blue Cross, Blue Shield and Major Medical coverage, to be paid 80% by defendant and 20% by plaintiff, to pay one-half of the child's uncovered medical expenses, and to obtain a $25,000 whole life or term insurance policy for the
child with plaintiff mother as trustee. Defendant was also ordered to pay the sum of $5,000 in full payment of all out-standing arrears for support and uncovered medical expenses.
Meanwhile, on April 28, 1988, plaintiff filed a separate action against defendant. Despite her acknowledgement in a later certification that she engaged in voluntary sexual relations with defendant while using a contraceptive sponge form of birth control, in her complaint, as amended on May 23, 1988, plaintiff alleged that she engaged in a "personal relationship" with defendant in reliance upon his representations that "he was single and incapable of impregnating" her because he had undergone a vasectomy. She sought relief for negligent misrepresentation, tortious interference with prospective economic advantage or contractual relationship, equitable and legal fraud, and negligent and intentional infliction of emotional distress. She sought damages for physical pain and suffering during her pregnancy and post delivery recuperation and loss of income from her business. She also sought punitive damages on some of the counts. In his answer, defendant admitted telling plaintiff he had undergone a vasectomy, but claimed it was said in jest. By way of separate defense, defendant claimed plaintiff's complaint failed to state a cause of action, was duplicative of the paternity action then pending in the Family Part, and was barred by the equitable doctrines of unclean hands, laches and waiver.
Defendant moved for summary judgment, supported by his certification. In her responding certification, plaintiff alleged that the first time she engaged in sexual intercourse with defendant was in March 1987 while they were in Mexico together. She said the first several times they engaged in sexual intercourse she used a contraceptive sponge for birth control. However, when she informed defendant of her use of this device, he told her she did not have to use any birth control because he had had a vasectomy. Because of her belief that he
was telling the truth,*fn2 plaintiff engaged in sexual intercourse with defendant without any form of birth control. Although defendant did not entirely agree with plaintiff's version of the facts, he conceded that for purposes of his summary judgment motion plaintiff's version of the facts must be accepted as true. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 65 (1980).
In a short oral opinion delivered on October 28, 1988, the trial judge granted summary judgment to defendant. The judge found no legal precedent in this state on the issue presented, but noted the existence of some out-of-state cases dealing with the subject. He relied in particular upon Stephen K. v. Roni L., 105 Cal.App. 3d 640, 164 Cal.Rptr. 618 (Cal.Ct. of App. 2 Dist.1980), and L. Pamela P. v. Frank S., 88 A.D. 2d 865, 451 N.Y.S. 2d 766 (App.Div.1982), aff'd 59 N.Y. 2d 1, 449 N.E. 2d 713, 462 N.Y.S. 2d 819 (Ct.App.1983).
Since the issue is one of first impression in this state it requires a policy determination. In making that decision we are greatly aided by the California court. In Stephen K. v. Roni L., supra, a mother and her minor child brought a paternity suit against Stephen K., who, after admitting paternity, filed a cross-claim [counterclaim] "for fraud, negligent misrepresentation and negligence" seeking compensatory and punitive damages for the "wrongful birth" of his child. 164 Cal.Rptr. at 619. He claimed the child's mother had falsely represented to him that she was taking birth control pills and that, in reliance upon her representation, he engaged in sexual intercourse with her, eventually resulting in the birth of the child. The court found that such claims arise from conduct so intensely private that the court should not be asked, nor attempt to
resolve them. Concluding that, although the mother may have lied and betrayed the personal confidence reposed in her by Stephen, the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor. The court continued:
The claim of Stephen is phrased in the language of the tort of misrepresentation. Despite its legalism, it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy. In Stanley v. Georgia (1969) 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L. Ed. 2d 542, the high court recognized the right to privacy as the most comprehensive of rights and the right most valued in our civilization. Courts have long recognized a right of privacy in matters relating to marriage, family and sex (see e.g. People v. Belous, (1969) 71 Cal. 2d 954, 963, 80 Cal.Rptr. 354, 458 P. 2d 194, regarding the right of a woman to bear children; Griswold v. Connecticut (1965) 381 U.S. 479, 485-486, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, concerning state law forbidding use of contraceptives by married couples; Eisenstadt v. Baird (1972) 405 U.S. 438, 453-455, 92 S. Ct. 1029, 1038-1039, 31 L. Ed. 2d 349, regarding state law prohibiting distribution of contraceptives to unmarried persons).
We reject Stephen's contention that tortious liability should be imposed against Roni, and conclude that as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference. [164 Cal.Rptr. at 620-621.]
We agree with these expressions by the California court.*fn3 These principles have also been followed by our sister states of New York and Pennsylvania. In L. Pamela v. Frank S., supra, the New York Court of Appeals affirmed the Appellate Division's decision that the deliberate misrepresentation by the mother concerning her use of contraception had no bearing on the father's obligation to support his child. In reaching that conclusion, the court conceded that the father had a constitutionally protected right to decide for himself whether to father a child, which involved the freedom to decide for oneself without unreasonable governmental interference whether to avoid
procreation through the use of contraception. However, the court concluded:
This aspect of the right of privacy has never been extended so far as to regulate the conduct of private actors as between themselves. Indeed, as the Appellate Division recognized, judicial inquiry into so fundamentally private and intimate conduct as is required to determine the validity of respondent's assertions may itself involve impermissible State interference with the privacy of these individuals (see, also, Stephen K v. Roni L., 105 Cal.App. 3rd 640, 164 Cal.Rptr. 618). [462 N.Y.S. 2d at 822.]
The Supreme Court of Pennsylvania reached a similar conclusion in Hughes v. Hutt, 500 Pa. 209, 455 A.2d 623, 625 (Pa. 1983), in which a father sought to raise as a defense or counterclaim an allegation that the mother deceived him into believing she was practicing birth control when in fact she was not. In a footnote, the court noted that its conclusions were shared by the courts of California and New York, citing Stephen K. v. Roni L., supra, and L. Pamela P. v. Frank S., supra.
We recognize that in all three of these out-of-state cases the issue arose by way of a father's counterclaim to a suit seeking to establish paternity and support for the child, whereas, in this case, it is the mother who seeks a personal recovery from the father, the questions of paternity and support having been resolved in a separate proceeding.*fn4 However, the courts of California were again called upon to address this issue in a suit by a female against a male for fraud and deceit, and intentional infliction of emotional distress arising out of their sexual relationship. In Perry v. Atkinson, 195 Cal.App. 3d 14, 240 Cal.Rptr. 402 (Cal.Ct.App. 4 Dist.1987), Perry alleged that she terminated her pregnancy by abortion based upon Atkinson's ...