Tom L. NELSON et al., Petitioners, v. Edward M. KRUSEN and Baylor University Medical Center, Respondents, 678 S.W.2d 918

ON MOTION FOR REHEARING SPEARS, Justice. We withdraw our opinion and judgment of November 16, 1983, and substitute the following. Tom and Gloria Nelson brought a wrongful birth suit in their own behalf and a wrongful life suit as next friends of Mark Nelson, their minor son, against Dr. Edward Krusen and Baylor University Medical Center. The Nelsons’ suits alleged that Dr. Krusen negligently advised them that Mrs. Nelson was not a genetic carrier of Duchenne muscular dystrophy and was no more likely than any other woman to have a child afflicted by the disease.

The Nelsons further alleged that, had they known of the risk that their child would be born with the disease, they would have terminated the pregnancy. The Nelsons alternatively claimed that Baylor negligently conducted or reported certain tests thereby causing Dr. Krusen to misinform them. The trial court rendered

summary judgment for Dr. Krusen and Baylor on the grounds that the statute of limitations had run on the wrongful birth claim and that no cause of action for wrongful life exists in Texas. The court of appeals affirmed. 635 S.W.2d 582. We reverse the court of appeals insofar as it held the statute of limitations,

article 5.82,

section 4 of the Insurance Code, barred the Nelsons’ claims. We affirm the court of appeals holding that no cause of action for wrongful life exists in Texas. This is an appeal from a

summary judgment; therefore, we take as true the uncontroverted evidence of the non-mov-ants. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The

summary judgment evidence showed that the Nelsons already had one child with Duchenne muscular dystrophy when they learned in 1976 that Mrs. Nelson was again pregnant. The Nelsons consulted Dr. Krusen to determine whether Mrs. Nelson was a genetic carrier of the disease. Dr. Krusen examined Mrs. Nelson on three separate occasions between April and June of 1976, and based on test results, assured Mrs. Nelson that she was not a carrier. In light of Dr. Krusen’s opinion, the Nelsons chose not to terminate the pregnancy, and Mark Nelson was born November 24, 1976.

On November 12, 1979, a nursery school examination revealed that Mark had tight heel cords bilaterally. As a result, Mark was referred to a pediatric neurologist, who determined from an examination on February 20, 1980, that Mark had Duchenne muscular dystrophy. Mark was three years and three months old at this time. The neurologist based his diagnosis in part on Mark’s “lordotic and clumsy gait.” Although this clumsiness may have been evident during Mark’s first two years, during that time these symptoms could be discounted as simply the result of being two years old and learning to walk.

Only as the child grew older and continued to exhibit this clumsiness, however, did the possibility of a neuromuscular defect become detectable to the trained eye. I. Statute of Limitations Dr. Krusen and Baylor moved for

summary judgment, claiming that the Nelsons’ actions were barred because they were not brought within two years of the last examination by Dr. Krusen. The defendants relied on the limitations period prescribed by

article 5.82,

section 4 of the Insurance Code, which provides: Notwithstanding any other law, no claim ... for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed .... The limitations period of

article 5.82, by its terms, arguably began running on the date of the last examination by Dr. Krusen or on the date of Mark’s birth and barred the Nelsons’ claims two years later. Under our holding in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), the statute cannot cut off Mark’s cause of action before he reaches the age of legal capacity. If applied literally, the statute would, however, operate to bar the parents’ cause of action before they knew it existed, even though they did not discover, and could not reasonably have discovered, their injury within two years.

The Nelsons contend that applying the statute in this manner is unconstitutional. In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), a medical malpractice case, this court adopted the “discovery rule,” providing that the statute of limitations did not begin to run until the patient learned of, or, in the exercise of reasonable care and diligence, should have learned of, the alleged malpractice. Id. at 580. The rule in Gad-dis was adopted as a matter of statutory construction, because the limitations provision,

article 5526, Tex.Rev.Civ.Stat.Ann., provided that the suit must be brought within two years of the date the cause of action accrued. We held that a cause of action does not accrue until the plaintiff knows, or has reason to know, of his injury. In contrast,

article 5.82,

section 4 contains no accrual language and thus imposes an absolute two-year statute of limitations, regardless of when the injury was discovered. The Nelsons challenge the statute on several constitutional grounds. They claim that the statute denies them equal protection and due process under the fourteenth amendment to the United States Constitution. Under the Texas Constitution, they claim that the statute violates the

article I,

section 3 prohibition against public emoluments, the

section 19 due process guarantee, and the

section 13 “open courts” provision.

Article I,

section 13 provides in part: ... All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. Tex. Const, art. I, § 13. The Nelsons argue that this guarantee of a remedy by due course of law makes any legislative attempt to bar their cause of action prior to its discovery unconstitutional. Our disposition of the Nelsons’ open courts argument makes consideration of the other constitutional claims unnecessary. The numerous decisions of this court construing

article I,

section 13 establish that the guarantee of a remedy by due course of law is a substantial right, independent of other constitutional provisions. Although sections 13 and 19 of

article I both guarantee due process, Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983), the two Texas due course of law provisions are not coterminous. Separate due process and open courts guarantees were included in the seventh and eleventh declarations of rights in the first constitution of Texas as a sovereign republic. These separate rights have been preserved in every constitution since. See Tex. Const. (1836); see also 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 47 (1977).

The common thread of this court’s decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition. In H. Runge & Co. v. Wyatt, 25 Tex. (Supp.) 291 (1860), the court was faced with the issue of whether a defendant had the right to be sued in his home county when that county was newly severed from an existing county and did not yet have courts.

Relying on the open courts provision, the court concluded that the legislature could not have intended to force plaintiffs to sue in a county where there were no tribunals to provide a remedy by due course of law. Id. at 294; accord Clark v. Goss, 12 Tex. 395 (1854); O’Shea v. Twohig, 9 Tex. 336 (1852). In Dillingham v.

Putnam, 109 Tex. 1, 14 S.W. 303 (1890), this court stated, “A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a given controversy, denies a remedy by due course of law.” 14 S.W. at 304. The court went on to hold that a legislative act making the right of appeal depend on the giving of a supersedeas bond, without reference to the appellant’s ability to pay, was unconstitutional. Id. 14 S.W. at 305. Of course, for those unable to pay, the bond was an impossible condition.

This principle was best illustrated in the case of Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932). The city charter exempted the city from liability for injuries caused by street defects, unless the city had written notice of the defect at least twenty-four hours prior to the injury. In other words, the plaintiff, Mrs. Hanks, was required to give the city notice of the defect before she was injured.

In posing the issue, the court asked, Can it be “due process” to say that although she did not see the defect, and did not know of its existence, yet before she can recover for the city’s wrongful act (if it was wrongful), she must have notified the city of the defect twenty-four hours before she received her injuries? 48 S.W.2d at 947-48. The court declared the notice provision unconstitutional, stating, [I]t is obvious that notice of the defect, to be made by one ignorant of its existence, twenty-four hours before the subsequent injury, is unreasonable.

A different question would be presented if the notice requirement applied only to those who had knowledge of the defect which brought about the injury. To require notice of those who knew nothing of a defective condition is to impose an unreasonable condition precedent to recovery, and which is, we believe, beyond the legislative power. Id. 48 S.W.2d at 948 (emphasis added).

The court amplified its reasoning by pointing out that the notice provision, in addition to barring the claim of one who did not know of the defect, would cut off the rights of children or others who were prevented by incapacity from complying. The court stated, Would that be reasonable? Is the requirement of a thing impossible from an infant, or one incapacitated for any reason due process? We think not; and yet it is a condition precedent to recovery ....

Obviously the charter requirement in respect to the notice here involved is unreasonable, and, if unreasonable, it violates the due process clause of the Constitution. Id. (emphasis added). The court in McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.1972), applied similar reasoning. A city charter provision requiring notice within sixty days of an accident was challenged as violating

article I,

section 13, to the extent the notice requirement applied to minors. The court reasoned that the notice provision presupposed the existence of a person capable of complying. In the case of minors, this presupposition was false, because minors were legally incapacitated from bringing suit and, hence, powerless to comply with the notice requirement. For this reason, they, like those unable to comply because of physical or mental incapacity, were excused from compliance until their disabilities were removed. See also Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955); City of Terrell v.

Howard, 130 Tex. 459, 111 S.W.2d 692 (1938). The reasoning of these decisions was reaffirmed in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), a medical malpractice case specifically addressing the constitutionality of

article 5.82,

section 4 of the Insurance Code as applied to minors. We recognized that

article I,

section 13 of the Texas Constitution guarantees that Texas citizens bringing common law causes of action will not unreasonably be denied access to the courts. 648 S.W.2d at 664. Based on Hanks v. City of Port Arthur and McCrary v. City of Odessa, we held that “the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress.” 648 S.W.2d at 665-66. We concluded that the legislative basis for

article 5.82 was legitimate and adopted a two-step analysis for weighing the litigant’s constitutional right to redress against the purpose of the statute. The minor plaintiff, Lori Beth Sax, satisfied the first criterion, because she was denied an established common law cause of action for malpractice. See, e.g., Texas & P. Ry. Co. v. Morin, 66 Tex. 225, 18 S.W. 503 (1886). We held that Lori Beth Sax also satisfied the second criterion, which required that she show the restriction was unreasonable and arbitrary. Because

article 5.82 cut off forever her cause of action before she was legally able to sue, without providing a reasonable substitute, we held that the limitations provision unconstitutionally abrogated her right to redress. 648 S.W.2d at 667 (citing Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916), aff'd 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919)). These decisions lead to the conclusion that

article 5.82 as applied here violates the open courts provision by cutting off a cause of action before the party knows, or reasonably should know, that he is injured. How is the impossible condition placed on the Nelsons any less onerous than requiring a party to sue where there are no courts? See H. Runge & Co. v. Wyatt, 25 Tex.(Supp.) 291 (1860). How is the condition less arbitrary than requiring a bond from one unable to pay? See Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (1890). Is the Nelsons’ position any different from Mrs.

Hanks, and others incapacitated for any reason, who likewise could not meet the impossible requirement of giving notice of that of which they were not aware? See Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932). Is a person whose injuries are not immediately discoverable any more able to sue during the period of undiscoverability than are children during their period of legal disability? See Sax v. Votteler, 648 S.W.2d 661 (Tex.1983); McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.1972).

There is no qualitative difference between the unreasonable condition imposed on the Nelsons and those previously struck down by this court. In one respect, the circumstances in the present case are even more compelling than in Sax and McCrary. In those cases, it was possible for the parents to bring their children’s suits in time, even if limitations were allowed to run. In the present case, if the Nelsons’ assertions are true, the nature of the injury made it unreasonable to expect that anyone, parent or child, would be able to bring suit within two years. The limitation period of

article 5.82,

section 4, if applied as written, would require the Nelsons to do the impossible — to sue before they had any reason to know they should sue. Such a result is rightly described as “shocking” and is so absurd and so unjust that it ought not be possible. Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972); Gaddis v. Smith, 417 S.W.2d 577, 580, 581 (Tex.1967). Deferring to the legislative imposition of such an unreasonable condition would amount to an abdication of our judicial duty to protect the rights guaranteed by the Texas Constitution, the source and limit of legislative as well as judicial power. This, we cannot do. We hold that

article 5.82,

section 4 of the Insurance Code is unconstitutional, under the open courts provision, to the extent it purports to cut off an injured person’s right to sue before the person has a reasonable opportunity to discover the wrong and bring suit. Neither Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), nor Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977), is to the contrary. In both cases, the adult litigants discovered their injuries while there was still a reasonable time to sue. In both cases the parties had over one year from the date the injuries were discovered, even if the two year limitations period was not tolled.

The statutes of limitation were not unconstitutional as applied to the parties in Sax and Robinson; hence, there was no reason to strike down the statutes merely because they might operate in an unconstitutional manner in another case. See City of Waco v. Landingham, 138 Tex. 156, 157 S.W.2d 631 (Tex.1941); see also Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137 (1910). In stark contrast, the Nelsons were cut off well before they discovered Mark’s condition. There was no time within two years of the last examination or of Mark’s birth when they could have sued.

The legal issue in Robinson v. Weaver is distinguishable as well. Robinson involved the construction of

article 5526, Tex.Rev. Civ.Stat.Ann. The question was whether in a misdiagnosis case the court should construe the accrual language of that statute to mean the date on which the injury was discovered, as had been done in Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). No constitutional issue was raised or decided in Robinson.

Article 5.82, on the other hand, does not use the term “accrue” and simply counts the limitations period from a specific date. The constitutional question is squarely raised in the present case. We hold that

article 5.82,

section 4 of the Insurance Code as applied in this case violates the open courts provision of

article I,

section 13 of the Texas Constitution. Therefore, the parents’ cause of action for “wrongful birth” is not barred by limitations. In Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975), we approved a cause of action for “wrongful birth,” under which parents may recover the expenses reasonably necessary for the care and treatment of their child’s impairment from a physician who has negligently failed to inform the parents of the risk of that impairment. II. Wrongful Life The remaining issue in this case is whether we should grant the child a cause of action for “wrongful life,” a question not reached in Jacobs.

Mark, through his next friend, asserts that but for Dr. Kru-sen’s negligence in failing to inform the Nelsons of the risk of Duchenne muscular dystrophy, the Nelsons would have aborted the pregnancy. Therefore, the doctor’s negligence was the proximate cause of Mark’s being born, and having to live, in an impaired condition. The parents seek damages on Mark’s behalf as compensation for the added medical expenses and for the pain and suffering of having to live with muscular dystrophy. The majority of states that have considered the issue have refused to adopt a cause of action for wrongful life. See Elliott v.

Brown, 361 So.2d 546 (Ala.1978); Moores v. Lucas, 405 So.2d 1022 (Fla.Dist.Ct.App.1981); Strohmaier v. Associates in Obstetrics & Gynecology, 122 Mich.App. 116, 332 N.W.2d 432 (1982); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979), aff'd by an equally divided court, 497 Pa. 77, 439 A.2d 110 (1981); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). See also Payton v.

Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982) (no cause of action for child for injuries resulting from administration of DES to mother, if child would not have been born but for use of DES). These cases give two general reasons for denying a wrongful life cause of action. The first is the courts’ unwillingness to hold that a plaintiff can recover damages for being alive. At heart, the reluctance of these courts is based on the “high value which the law and mankind has placed on human life, rather than its absence.” Becker v. Schwartz, 386 N.E.2d at 812.

The other rationale articulated by the courts is that, because in awarding damages the court must offset any special benefits to the plaintiff resulting from the negligence, see Restatement (Second) of Torts § 920 (1979), such a cause of action involves a weighing of life against non-life, a calculation that cannot rationally be made. See Dumer v. St. Michael’s Hospital, 233 N.W.2d at 376. As Chief Justice Weintraub said in the landmark case of Gleitman v. Cosgrove, “[Ujltimately, the infant’s complaint is that he would be better off not to have been born.

Man, who knows nothing of death or nothingness, cannot possibly know whether this is so.” 49 N.J. 22, 227 A.2d 689, 711 (1967) (concurring and dissenting). In an effort to meet these objections, the highest courts in three states have adopted what might be called a limited wrongful life cause of action. In Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982), the Supreme Court of California held that the child could recover in his own behalf the extraordinary medical expenses not awarded to the parents.

The court, recognizing that it would be impossible to measure the benefits of life against the detriments of an impaired life, refused to allow general damages to the child. The court went on to hold, however, that awarding special damages for medical expenses and training did not require the court to weigh life against non-life, and thus these special damages could be compensated. A year later, in Harbeson v. Parke-Davis Inc., 98 Wash.2d 460, 656 P.2d 483 (1983), the Supreme Court of Washington reached the same result, largely based on the Turpin case. In Procanik v.

Cillo, 97 N.J. 339, 478 A.2d 755 (1984), the Supreme Court of New Jersey recently joined the California and Washington courts by allowing the child to recover his extraordinary medical expenses. The parents in Procanik were barred from any recovery on their own behalf by the statute of limitations. Despite the efforts of the Turpin, Harbeson and Procanik courts, we do not believe that the issue can be so easily limited. The basic rule of tort compensation is that the plaintiff is to be put in the position that he would have been in absent the defendant’s negligence.

In a personal injury case, that standard requires a comparison of the condition that the plaintiff would have been in without the negligence with the plaintiff’s actual condition as a result of the defendant’s negligence. In this, as in all wrongful life cases, however, there is no allegation that but for the defendant’s negligence the child would have had a healthy, unimpaired life. Instead, the claim is that without the doctor’s negligence the plaintiff never would have been born. Thus, the cause of action unavoidably involves the relative benefits of an impaired life as opposed to no life at all.

All courts, even the ones recognizing a cause of action for wrongful life, have admitted that this calculation is impossible. We do not believe that the measure of damages can be circumscribed as the California, Washington and New Jersey courts have attempted. As was said by the Michigan court in Strohmaier, “The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist.” 332 N.W.2d at 435. We hold that there is no cause of action in Texas for wrongful life.

Our holding is not based on a mere difficulty in assessing a dollar amount of damages. It has long been held that imprecision of damages is not a bar to recovery. Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957); Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938). But this is not just a ease in which the damages evade precise measurement. Here, it is impossible to rationally decide whether the plaintiff has been damaged at all. That “is a mystery more properly to be left to the philosophers and the theologians.” Becker v. Schwartz, 413 N.Y.S.2d 895, 386 N.E.2d at 812.

To summarize, we hold that

article 5.82,

section 4 of the Insurance Code as applied in this case violates the open courts provision,

article I,

section 13 of the Texas Constitution. We also hold that there is no cause of action in Texas for wrongful life. The judgments of the trial court and court of appeals are reversed in part and affirmed in part. The cause is remanded for trial on the parents’ cause of action. ROBERTSON, J., files a concurring opinion. KILGARLIN and GONZALEZ, JJ., file concurring and dissenting opinions. WALLACE, J., files a dissenting opinion in which McGEE, J., joins. . Act of June 3, 1975, ch. 330, § 1, 1975 TEX.

GEN.LAWS 864, repealed by Medical Liability and Insurance Improvement Act, ch. 817, pt. 4, § 41.03, 1977 TEX.GEN.LAWS 2039, 2064. Essentially the same provisions are now found in TEX.REV.CIV.STAT.ANN. art. 4590Í, § 10.01 (Vernon Supp.1984). . Amended by Act of June 13, 1979, ch. 716, § 1, 1979 TEX.GEN.LAWS 1768.