(You're) Having My Baby: Surrogacy Fees as a Cost of Future Care Award in Canadian Tort Law
In April 2017, the BC Supreme Court released its decision in Wilhelmson v Dumma. After a horrific motor vehicle collision in which she was critically injured, the plaintiff was left unable to bear children. Justice Sharma, in a precedent-setting decision, awarded the plaintiff $100,000 for future surrogacy fees under the head of cost of future care. With this award, Justice Sharma attempted to return the plaintiff as close to her pre-tort position as money could do by giving her back the opportunity to have a biological child. The Wilhelmson decision was groundbreaking in its recognition of the plaintiff’s loss of reproductive capacity as a real, tangible loss deserving of a pecuniary damages award. Historically, the tort system has often undercompensated women for procreative harm and other female-specific injuries, citing moral and policy rationales to justify the departure from ordinary principles of tort law. These arguments and rationales are often based on little more than intuition and hypothetical risks. In order to fully compensate women for their losses, courts may need to critically examine the principles that have often restricted
female plaintiffs’ recovery and develop creative remedies as Justice Sharma did with her award of surrogacy fees in Wilhelmson.
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