(You're) Having My Baby: Surrogacy Fees as a Cost of Future Care Award in Canadian Tort Law

AuthorMichaela Merryfield
PositionRecently completed her JD at the University of Victoria and is currently articling at Acheson Sweeney Foley Sahota LLP in Victoria
Michaela Merryeld *
CITED: (2019) 24 Appeal 135
In April 2017, the BC Supreme Court released its deci sion in Wilhelmson v Dumma.
After a horric motor vehicle col lision in which she was critica lly injured, the plainti
was left unable to bea r children. Justice Sharma, i n a precedent-setting decision, awarded
the plainti $100,000 for futu re surrogacy fees under t he head of cost of future care.
With this award, Justic e Sharma attempted to return the plainti a s close to her pre-tort
position as money could do by giving her bac k the opportunity to have a biological child.
e Wilhelmson decision was groundbreak ing in its recognition of the plainti’s loss of
reproductive capacity as a re al, tangible loss deser ving of a pecuniar y damages awa rd.
Historically, the tort system ha s often undercompensated women for procreative harm and
other female-specic i njuries, citing moral and policy r ationales to justify t he departure
from ordinary principles of tort law. ese arguments and rationale s are often based on
little more than intu ition and hypothetical risks. I n order to fully compensate women for
their losses, cour ts may need to critically exa mine the principles that have often restricte d
female plainti s’ recovery and develop creative remedie s as Justice Sharma did w ith her
award of surrogacy fe es in Wilhelmson.
e goal of tort dama ges is compensatory; it is an attempt to put the plainti  back in the
position she was in before the tortious c onduct and resulting harm, as fa r as money can do.
Of course, it is often not possible to put the plainti  back in the same position, particu larly
in personal injury ac tions. For example, if a plainti is injured in a ca r accident and loses
an arm, the cour t cannot give the plainti her arm back. However, the court can aw ard
damages to compen sate the plainti for her pecuniary a nd non-pecuniary los ses such as
impaired ability to work, t he cost of medical and other ca re associated with her injur y,
and pain and su ering resulting from the injury.
e BC Supreme Court decision in Wilhelmson v Dumma was groundbreaki ng in its
attempt to fully restore the pla inti to the position she would have been in but for the
accident, which included reproductive cap acity.1 e plainti, Mikaela Wilhel mson, was
involved in a horric car accident in 2011 which left her critical ly injured. One of the
biggest impacts of t he collision on Ms. Wilhelmson’s life was the loss of her abilit y to
* Michaela Merry eld recently completed her JD at th e University of Victoria and i s currently
articling at Acheson Sween ey Foley Sahota LLP in Victoria. She t hanks Professor Elizabeth Adjin -
Tettey and the Editorial Board of App eal for their support and guidan ce with this article.
1 2017 BCSC 616 [Wilhelmson].
have a child. Whi le she was still fertile, the injuries to her spine and abdomen rendered
her unable to safely carry a child to term. In her judgment, Justice Sha rma awarded the
plainti dama ges for future surrogac y fees under the head of cost of futu re care. is
award is unprecedented in Ca nada. While cou rts have attempted to compensate fema le
plaintis for loss of fert ility or reproductive capacity, this has tr aditionally been done under
the head of non-pecuniar y damages. In a prece dent-setting decision, however, Justice
Sharma recogni zed Ms. Wilhelmson’s loss of reproductive capacity as a real, ta ngible loss
deserving of a pec uniary da mages award, in addition to its being a factor in the award
of non-pecuniary da mages. Justice Sha rma recognized that giving Ms. Wilhelmson the
opportunity to travel to t he United States and hire a commercial surrogate would put her
in as close a position to her pre-accident state as f ar as money could achieve. In thi s paper, I
will arg ue that by awarding the plainti  $100,000 for future su rrogacy fees, Justice Sha rma
recognized Ms. Wi lhelmson’s reproductive autonomy by giving her back the abil ity to have
biological ch ildren.2 Ms. Wilhelm son had this reproductive capacity be fore the accident but
lost it due to her injuries, making Just ice Sharma’s approach to compensation consistent
with tort law principles to restore the plai nti to her pre-tort position.
While Justice Sha rma showed respect to the plainti ’s reproductive autonomy in her
judgment, this has not alw ays been the case in tort law. Historical ly, tort law has often fai led
to fully compensate women for procreative ha rm and other female-specic injuries. e se
harms tend to be under valued, or at times, not recognized at a ll.
For example, women are
often not awarded the cost s of child-rearing in i nvoluntary parenthood a ctions. Instead,
only the costs asso ciated with pregnancy and chi ldbirth are awarded despite child-rearin g
costs being the most sig nicant economic impact of having a chi ld.
Whether in an ac tion
for involuntary parenthood or for t he loss of ability have a child, courts continue to have
diculty wit h fully recognizing women’s reproductive autonomy and compensating them
for the losses they have su ered. is unwillingnes s to fully compensate women for these
types of injuries of ten runs contrary to the tort law principles of compensati ng plaintis
for their losses and putti ng them back in their pre-tort positions.
In this paper, I will rev iew the Wilhelmson decision and discuss the signica nce of the
award of surrogacy fe es, as well as Justice Sharma’s reasoning for the awa rd. Next, I will
discuss the public reac tion to the case, and consider why the decision was met w ith some
discomfort. Fina lly, I will examine how several of t he public’s concerns with the Wilhelmson
decision reect many of the arg uments and policy rationales that h ave historically limited
women’s recovery for female-specic injuries, includi ng involuntary parenthood, loss of
childbearin g capacity, and shock-induced miscarriages. I w ill argue that these a rguments
and rationales are l ittle more than intuition and hypothetica l risks and should not justify
2 Professor Erin Nelson denes reproduc tive autonomy as “the ability to be se lf-determining and
to act on one’s own values when ma king the choice about whether and h ow to have children.”
See Erin Nelson, Law, Policy and Re productive Autonomy (Oxford, UK : Hart Publishing, 2013) at 2.
3 Race and socioeconomic status have also played a m ajor role in the undervaluation o f women’s
injuries, but this is outside t he scope of this paper. For a discussion on how thes e factors have
limited plaintis’ recover y in tort law, see Martha Chamallas & Je nnifer B. Wriggins, The Measure
of Injury: Race, Gender, and Tort Law (New York: New York Univer sity Press, 2010). Sanda Rodgers
also observes, “Not a ll women and communities of women exp erience reproduction similar ly.
Intersecting oppre ssions of race, ability, class, language, loc ation, sexual identity and fa mily
status, as well as experi ence of violence, compound the scope a nd impact of interference with
reproductive autonomy.” See Sand a Rodgers, “A Mother’s Loss is the Price of Parenthoo d: the
Failure of Tort Law to Recognize Birth as a Co mpensable Reproductive Inju ry” in Sanda Rodgers,
Rakhi Ruparelia & Louise Bélanger-Hardy, eds, Critical Torts (Markham, Ont: LexisNe xis Canada,
2009) 161 at 161.
4 In two-parent situations, the burde n of undercompensation falls on bot h parents and men are
also aected. More of ten, however, the majority of the biol ogical, social and economic cost s of
raising an unplanned child f all on women, meaning that women are more n egatively aected by
courts’ unwillingness to com pensate for child-rearing cost s in involuntary parenthood ac tions.

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