Carfra Lawton LLP | Victoria BC

Surrogacy Fees Now Recoverable by Plaintiffs in BC

A recent decision of the BC Supreme Court has opened the door for plaintiffs to claim surrogacy fees, despite the fact that it remains illegal in Canada to pay a surrogate. In Wilhelmson v. Dumma 2017 BCSC 616 the plaintiff was the sole survivor of a head-on collision that killed three other people in Surrey in 2011.

The plaintiff, then 21, suffered severe internal injuries, spent months in the hospital and underwent 20 surgeries. The plaintiff led expert evidence as to complications she might face in pregnancy and in childbirth and sought a specific damages award for surrogacy fees. Counsel for the defendant argued that these complications were simply factors to be considered in assessing the plaintiff’s non-pecuniary damages award.

Although it is illegal to pay a surrogate in Canada, the court recognized that many Canadian women have paid for that service in the US, where it is legal.

The court concluded that the emotional pain surrounding the plaintiff’s inability to have children should be recognized in her award for non-pecuniary damages. In addition, the court awarded the plaintiff $100,000 for surrogacy fees as part of her cost of future care award to cover the cost of two pregnancies via a surrogate.

Case summary by Amy Coad