By Lyndee Therrien
In what is being deemed by many as a first in Canada, the Supreme Court of British Columbia awarded damages for the future cost of surrogacy following a fatal motor vehicle accident that left three dead and one sole survivor with life-threatening injuries.
The Plaintiff was 21 years of age at the time of the high-speed head-on collision. As a result of the accident, she was flown by air ambulance to Vancouver General Hospital for emergency surgery. She was in a medically induced coma for almost four weeks and spent a total of 39 days in the acute or traumatic care unit. In the first month of hospitalization, she underwent 10 surgeries.
The only issue at trial was the quantum of damages to be awarded. The parties were in dispute as to the amounts claimed for pain and suffering, loss of capacity to earn income (past and future), loss of interdependency, and cost of future care.
The Court awarded the Plaintiff $3,837,824.32 in damages. Of particular interest however, is one distinct aspect of the future care cost award (which totalled $882,066.00), namely the $100,000 award for future cost of surrogacy. While there was some evidence that the Plaintiff remained fertile after the accident, the uncontested expert evidence was that she would be unable to carry a baby to term as a result of her extensive injuries.
In coming to this conclusion, the trial judge accepted the evidence of two experts, namely that of Dr. Yuzpe, an expert qualified by the trial judge to give opinion evidence in the fields of infertility, gynecology and obstetrics, and reproductive medicine, and that of Dr. Marquette, an expert qualified to give opinion evidence in the field of maternal-fetal medicine. Based on the medical evidence presented, the trial judge found as a fact that the plaintiff would have significant difficulties conceiving a child in the future as a direct result of the abdominal injuries she suffered from the accident. He also found that the Plaintiff would be putting her health and welfare at great risk, to an unreasonable degree, if she were to carry a baby thereby concluding that the best option for the plaintiff to have a biological child would be to hire a surrogate.
The defendant disagreed that it should be responsible for the cost of surrogacy and reasoned that any such award would be akin to court sanctioned illegal activity. The defendant argued that an award for surrogacy costs would be contrary to s. 6 of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the Act), which makes it illegal to pay a woman to be a surrogate in Canada.
In dismissing this argument, the trial judge concluded that the Act cannot apply outside Canada’s borders. Because the Plaintiff was seeking fees which would allow her to compensate an American surrogate, she would not be contravening the Act and therefore, the public policy argument raised by the defendant was of no concern in the circumstances.
The trial judge concluded that it would not be appropriate to assume that the loss suffered by the Plaintiff could adequately be compensated for within the award for non-pecuniary damages. While the trial judge recognized that the lost ability to carry a child to term caused pain and suffering deserving of compensation, he went on to find that the loss led to a distinct future cost in order to allow the Plaintiff to have a biological child, namely the cost of hiring a surrogate. Having found that the cost was medically necessary and reasonable, and that the necessity arose directly from the accident, the trial judge concluded that the cost must be borne by the defendant.
In support of his decision, the trial judge relied on Sadlowski v. Yeung, 2008 BCSC 456 (CanLII). In that case the plaintiff underwent a hysterectomy and alleged the defendant gynaecologist failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and the plaintiff alleged that had she been properly informed she would not have proceeded with the hysterectomy. 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. The court ultimately did not award a separate amount for surrogacy fees because the evidence of her desire to pursue surrogacy was “highly speculative”. There was no evidence that the plaintiff had pursued surrogacy in the four years leading up to the trial, nor that she would in the future. The court was satisfied that the award of damages for loss of fertility could provide the means to pursue the surrogacy in the future should she choose to.
The trial judge in this case was satisfied that the evidence before him was not “highly speculative”, and was persuaded that the claim for surrogacy fees was medically justified and reasonable. In determining the proper amount, the trial judge relied on the uncontested evidence of Dr. Yuzpe who testified that the approximate cost involved in hiring a surrogate in the United States ranged between $50,000 and $100,000 per pregnancy by surrogate. The trial judge concluded that an award at the low end of this range was appropriate and awarded surrogacy fees in the amount of $100,000 for two pregnancies ($50,000 per pregnancy).
While the decision is very promising for young female plaintiffs, the decision makes clear that there is a high evidentiary burden required to prove damages for surrogacy fees.
The full decision can be read here: http://canlii.ca/t/h37fh.