In August 2011, the 21 year old plaintiff was involved in a serious motor vehicle accident. The accident killed three others including her boyfriend. As a result of her extensive injuries, the plaintiff was in a medically induced coma for about four weeks and underwent ten surgeries in the first month after the accident. The evidence was clear that the accident drastically changed her physical, emotional, psychological and social well-being. It was found that the plaintiff would have significant difficulties conceiving and carrying a child due to her abdominal injuries from the accident and the best option for the plaintiff to have a biological child would be to hire a surrogate.
Both parties agreed that the plaintiff should be awarded for her inability to conceive or carry her own child. The plaintiff argued that the costs of a surrogate should be included in the damages for cost of future care. The defendants argued that the plaintiff’s inability to have her own child should be accounted for under the award for non-pecuniary damages. The defendants also argued that the award for surrogacy fees is not available as such an award would be contrary to public policy noting that the Assisted Human Reproduction Act S.C. 2004, c. 2 makes it illegal to pay a woman to be a surrogate in Canada.
The Honourable Madam Justice Sharma noted that the plaintiff was not looking for surrogacy fees to pay a surrogate in Canada, which would contravene the AHR Act. Rather, she was seeking fees that would allow her to compensate an American surrogate.
The court found that the plaintiff was entitled to be put in the same position as she was had the accident not happened and surrogacy fees were the only way to do that. Madam Justice Sharma held, at paragraphs 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.
Madam Justice Sharma awarded the plaintiff with $100,000 in surrogacy fees for two pregnancies.
In sum, the plaintiff was awarded the following:
$50,000 - in-trust award in recognition of the assistance the plaintiff’s parents;
$88,758.32 - special damages;
$367,000 – pain and suffering;
$2,450,000 - loss of capacity to earn income (both past and future) and loss of interdependency; and
$882,066 – cost of future care.
The full text of this case can be found here: