The Inclusion of Surrogacy Fees in a Personal Injury Claim
A precedent setting personal injury decision out of British Columbia was recently released, Wilhelmson v. Dumma, 2017 BCSC 616. The case arose from a major head on collision that killed 3 and left the Plaintiff in this case with severe injuries. These injuries forced the Plaintiff be in the Intensive Care Unit for nearly a month and while she required 10 surgeries. The list of injuries included:
- descending aortic injury requiring insertion of a stent;
- rupture of the large and small bowels;
- rupture of her diaphragm;
- abdominal wall rupture and evisceration;
- left adrenal hematoma;
- laceration of her spleen;
- sternal fracture;
- 13 broken ribs;
- right clavicle fracture;
- multiple extremity torso and abdomen lacerations and bruises;
- multiple other soft tissue bruises to the torso and abdomen;
- partial right lung collapse secondary to rib fractures and hem pneumothorax; and
- a chance fracture which is a flexion distraction injury to the L2 vertebrae.
Miraculously, the Plaintiff survived this accident and her various surgeries.
Approximately, four years after the accident, the Plaintiff became pregnant. However, due to the severe abdominal injuries that were sustained her medical team advised her to terminate the pregnancy. Expert opinion tendered at trial indicated that carrying a child posed series health risks for the Plaintiff. Accordingly, the Judge awarded the maximum amount allowable for general damages. The Judge stated:
“In my view, one of the most compelling factors justifying a maximum award for pain and suffering is the fact that Ms. Wilhelmson endured the truly awful ordeal of having to abort a child that she wanted to carry. Some might argue her injuries should not be seen to be as severe as a woman who loses the ability to get pregnant, but I disagree. Ms. Wilhelmson faces a future where she might be fertile and might be able to get pregnant again, but cannot safely carry a child. Other than abstinence, no method of birth control is 100% effective. She therefore faces a possibility at the young age of 26 of again, getting pregnant and having to abort a child that she desperately wants to have.”
Over and above this, the Judge awarded $100,000 for surrogacy fees as a future cost of care item for the Plaintiff. It was clear from the evidence that the Plaintiff was never going to be able to have a baby on her own and that obtaining a surrogate would be the only safe way for her to have a baby. Even though the law prohibits paying a surrogate in Canada, the Judge awarded this under the following rationale:
“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.”