Canadian crash victim awarded damages to pay for surrogacy

A Canadian woman has been awarded $100,000 in damages to pay for a surrogate in a precedent-setting legal case.

The payout formed part of the Canadian $3.83 million from the Insurance Corporation of British Columbia (ICBC) awarded to Mikaela Wilhelmson by the British Columbia Supreme Court.

The judgment sets a precedent because in Canada commercial surrogacy is against the law (see BioNews 897). However, it is not illegal to travel to the United States and pay a surrogate there, which many Canadian women have successfully done.

In 2011, Ms Wilhelmson was the sole survivor of a high-speed motor vehicle collision, as a result of which she sustained critical injuries and had to undergo 20 surgeries.

Five years after the collision Ms Wilhelmson became pregnant, but was unable to carry the child to term due to the damage in her spine and internal organs. Her lawyer, Conrad Margolis, stated that even though Ms Wihelmson is fertile, it would unsafe and practically impossible for her to have a successful pregnancy due to the amount of scar tissue in her abdomen.

In her decision, Justice Neena Sharma stated: 'I also find as a fact that Ms Wilhelmson would be putting her health and welfare at great risk, to an unreasonable degree, if she were to carry a baby. I have no doubt that the best option for Ms Wilhelmson to have a biological child would be to hire a surrogate'.

Justice Sharma found that both parties agreed that the loss of Ms Wilhelmson's ability to carry her own child was compensable and further noted that eminent obstetrician-gynecologist Dr Albert Yuzpe 'testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defense… I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies'.

Whether or not ICBC will appeal this ruling is unknown at this time.