Damages for Surrogacy Fees Awarded in BC Injury Claim

In what I believe is the first case of its kind in British Columbia, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages for surrogacy fees for future potential pregnancies after a collision compromised the Plaintiff’s ability to safely carry a child.
In today’s case (Wilhelmson v. Dumma) the Plaintiff was “the sole survivor of a horrendous, high-speed, head-on collision that killed three other people”.  The collision caused profound injuries leading to permanent disability.  Included in the aftermath of this collision was an inability of the Plaintiff to safely carry a child.  In awarding damages for surrogacy fees should the Plaintiff wish to have a child by such means Madam Justice Sharma provided the following reasons:

[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.