Court Awards (Illegal?) Surrogacy Costs To Plaintiff
Maybe our cold neighbor to the north is warming up to the idea of paid surrogacy.
In April, the Supreme Court of British Columbia (that’s in Canada, not England or Colombia) issued a fascinating ruling. In addition to other damages totaling almost four million, the Court specifically awarded the plaintiff — the victim of a horrendous car crash — $100,000 for the use of a surrogate in a future pregnancy.
Plaintiffs With Terrible Injuries. If you were John Travolta at the beginning of A Civil Action, you might have been seeing dollar signs when reviewing the injuries suffered by the plaintiff, Mikaela Wilhelmson. Before the terrible car crash, Wilhelmson was young, healthy, athletic, and ambitious. She was working on starting her own company with her fiancé.
Tragically, Wilhelmson’s fiancé died in the car crash, along with the driver of the car they were in, and the driver of the car that hit them at over 150 kilometers per hour. (That’s not miles per hour, but still ridiculously fast.) Worse, the other car was driving the wrong way down a divided highway. Wilhelmson was the only survivor, and she spent nearly four weeks in a medically induced coma while undergoing ten separate surgeries. Among other issues, Wilhelmson had 13 broken ribs, a collapsed lung, a ruptured abdominal wall, and a ruptured spleen.
Tackling Deposition Anxiety: How AI Is Changing The Way Lawyers Do Depositions
As part of the case against the insurance company of the driver that hit them, Wilhelmson argued that due to the accident, she was no longer able to carry a child. Multiple doctors supported her claim, comparing her to a shattered vase where the pieces had been glued back together. Although the doctors found that she could produce eggs for a child, they concluded it was too medically risky for her to undergo a pregnancy and delivery.
But Surrogacy Is Illegal in the Plaintiff’s Country?! Interestingly, the Court did not seem concerned that compensated surrogacy is illegal in the plaintiff’s home country. The Court noted that, “In Canada, the law prohibits payment for women to carry another woman’s eggs and act as a surrogate. However, Dr. Yuzpe confirmed that many women have safely received that service in the United States, where it is legal. He estimates that the price can be anywhere from $50,000 to $100,000 per pregnancy.” Doesn’t that seem a little strange? Would a U.S. court ever award damages to a plaintiff specifically for conduct that is illegal in the United States, but legal in other countries? I’d be interested to hear of any similar examples if you know whether such an order has been issued by an American court.
Doctor Who? Dr. A. Albert Yuzpe, who testified for Wilhelmson, is not only a preeminent doctor in reproductive endocrinology (fertility medicine), but he also happens to be the inventor of the morning-after pill (apparently also called the “Yuzpe method” in some nerdy medical circles). So he handles both sides of the reproduction coin — to have a baby, or not to have a baby.
That’s Low. Sadly for Wilhelmson, the $100,000 award may soon become too low of a figure. As demand skyrockets for surrogacy — especially from hopeful international parents unable to undergo surrogacy in their home countries, Canada included — American gestational carriers are in high demand. And what did we learn in Economics 101? When demand is high and supply is low, price goes up.
Sponsored
Legal Contract Review in Under 10 Minutes? Here’s How
Data Privacy And Security With Gen AI Models
Curbing Client And Talent Loss With Productivity Tech
Data Privacy And Security With Gen AI Models
Only a few years ago, surrogates were recruited in the low-to-mid $20,000s. Today, many surrogacy agencies have upped compensation to $40,000 or more. Combine that with agency costs, fertility clinic costs, and a lawyer or two (of course we have to get in on the action), and total estimates for a surrogacy journey come closer to $150,000+. And that’s assuming Wilhelmson wants only one child.
This is a tragic case, indeed. And probably a necessary ruling in order to make the plaintiff whole. But it certainly sheds light on at least one Canadian judge’s feelings on surrogacy. Clearly it can’t be so horrendous, if a judge would encourage it to this extent. Maybe our cold neighbor to the north is warming up to the idea of letting consenting adults enter into surrogacy agreements.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
Sponsored
Tackling Deposition Anxiety: How AI Is Changing The Way Lawyers Do Depositions
