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Surrogacy Fees

Will the court award an amount to pursue surrogacy in the event that my injuries preclude me from becoming pregnant or carrying my own child?

In today’s case, Wilhelmson v Dumma (2017 BCSC 616), the plaintiff, a 21-year-old woman, was the lone survivor of a horrendous head on collision that took the lives of three other young individuals. One of those individuals was the plaintiff’s boyfriend, who the court was convinced the plaintiff would have married but for the crash. Upon arrival at hospital, the plaintiff was resuscitated back to life, suffered numerous life threatening injuries that required over 20 surgeries and was placed in a medically induced coma for 29 days.

Due to the injuries to the plaintiff’s abdomen , Dr. Yuzpe, a leading expert in the field of fertility, recommended that the plaintiff not become pregnant or attempt to carry a child due to the abdomen injuries being the most extensive he had seen in his 46 years of practice. Despite that recommendation the plaintiff became pregnant, but based on medical advice was forced to terminate the pregnancy due to the risks and complications that could arise while carrying the child. At trial, Dr. Yuzpe testified that because of these risks, the plaintiff would be a good candidate for surrogacy.

The parties agreed that her inability to have a child was a compensable loss, but the defence argued that it should only be included in the pain and suffering award, not as its own expense. The judge found that a surrogate was medically necessary for her to have a biological child, and that there was no indication that she was unable to carry a child before she was injured. She concluded at paragraph 367: “She is entitled to be put in the same position she was had the accident not happened. Surrogacy fees are the only way to do that.”

She then went on to address whether the plaintiff should be awarded for American surrogacy expenses despite the fact that paying a surrogate is illegal in Canada. The plaintiff cited Canadian cases that supported such an award, and the defence cited the opposite, and Justice Sharma accepted the plaintiff’s reasonable arguments, awarding both for the expense of a surrogate, and increased pain and suffering compensation to recognize for the pain caused by her inability to carry a child.  The court ultimately awarded the plaintiff $100,000.00 for surrogacy fees, which marks the first time a British Columbia court has awarded an amount specifically for surrogacy fees:

[373]     The facts of Palmer are very different from this case, but the defendant submits that the rationale is applicable. He submits making an award for surrogacy fees would be contrary to the AHR Act, just as making an award based on the discount would be have been contrary to the Combines Investigation Act.

[374]     I do not agree. In Palmer, the court concluded its award would sanction illegal conduct. In this case there is no such danger; Ms. Wilhelmson is not seeking surrogacy fees to pay a surrogate in Canada, which would contravene the AHR Act. Instead, she is seeking fees which would allow her to embark on the lawful activity of compensating an American surrogate. The AHR Act cannot apply outside Canada’s borders. Dr. Yuzpe testified he was aware of Canadians successfully hiring American surrogates with no known legal complications. I have been presented with no evidence or case law which convinces me that this practice contravenes Canadian law in any way.

[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child — the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.

[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.

[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):

I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned…..I prefer … to assess quantum for infertility discretely, by reference to the circumstances of each case.

[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.

[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.