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Award for future surrogacy costs believed to be first in Canada

A British Columbia court’s award for future surrogacy costs may signal a shift in attitude toward surrogacy in Canada, says Vancouver personal injury, workplace occupational health and safety, and employment lawyer Melanie D. Booth.

The judge’s decision “signifies the court’s creativity in working around laws that have not been able to keep up with the use of reproductive technology in Canada,” says Booth, a lawyer practising as a professional corporation with Kane, Shannon & Weiler.

The case involves a British Columbia woman who suffered serious injuries in a head-on crash in Surrey, B.C. six years ago, according to a CBC story.

The woman, who was a passenger in the back seat of the vehicle, was the lone survivor of the Aug. 13, 2011, crash that killed three people, including her fiancé, who was in the front seat, and the drivers of both vehicles, reports the CBC.

The driver of the other vehicle had been speeding and going the wrong way on a divided highway for several kilometres. Toxicology reports later revealed there was cocaine in his system, says the news report.

In her written decision, the judge said the front end of the vehicle “was completely mangled. The vehicle was crushed such that the back seat, where [the plaintiff] had sat, was almost pushed up against what used to be the dash. The car that caused the collision is unrecognizable as a vehicle; it is a large pile of twisted and crumbled metal.”

The plaintiff’s injuries were extensive, requiring 20 surgeries and procedures. The judge wrote, “It is difficult to fully comprehend the severity of the injuries suffered.”

The woman was later able to conceive, but it was determined that it wouldn’t be medically safe for her to carry a baby to term and the pregnancy was terminated. As part of her $4-million award, the judge included a precedent-setting $100,000 to be used for surrogacy because the woman’s injuries have left her unable to bear children.

Booth says the fees associated with surrogacy were singled out as a distinct future cost that was supported “as medically necessary and reasonable.”

She points out that the defendant argued these costs should not be awarded because it’s illegal to pay for surrogacy in Canada, pursuant to the Assisted Human Reproduction Act (AHRA).

“The court held that the fees would be used for legal surrogacy of an American surrogate — to avoid the argument of illegality in Canada,” says Booth.

She says the judge's decision was novel in two other ways.

First, the amount awarded for pain and suffering was at the top of the scale — $367,000 — an amount capped by the Supreme Court of Canada and usually reserved for "catastrophic" cases involving quadriplegia or traumatic brain injury, says the CBC report.

“This shows the growing tendency of B.C. courts to compensate for emotional pain and injury and/or psychological impact of injury,” says Booth.

The decision also included a substantial amount, $325,000, for “loss of interdependency.”

Booth explains this as “the loss of the financial benefit you get from being in a relationship. The loss arises from the 'real and substantial possibility' that a person will be unable to form an interdependent relationship.”

These awards are not meant to compensate for the loss of a particular relationship, but for not being able to stay in future relationships and enjoy the benefit of sharing expenses, she explains.

“Disfigurement such as scarring, which impacts the plaintiff’s self-confidence and likelihood of connecting on an intimate level in a future relationship, was a factor considered in this case to prove this loss,” says Booth.

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