(News Bulletin file)

UPDATE: Court awards B.C. woman costs for fees for use of surrogate in pregnancy

Nanaimo woman lone survivor of head-on collision in Surrey in 2011

A Nanaimo woman will receive $100,000 for use of a surrogate mother as part of $3.83 million in damages awarded to her in B.C. Supreme Court.

Mikaela Wilhelmson, 27, brought the case against representatives of ICBC, after she was the lone survivor of a head-on collision that occurred in August 2011 on Highway 10 and 136th Street in Surrey. The accident claimed the lives of two Nanaimo men, Jovan Salapura, 52 and Jarrett Swackhamer, 21, who was Wilhelmson’s boyfriend.

Jason Dumma, who was driving more than 150 km/h on the wrong side of the road, also died.

Wilhelmson suffered life-threatening injuries, including to her abdomen. She was in a medically induced coma for almost four weeks and had 10 surgeries, according to an April 13 ruling from Judge Neena Sharma.

The two sides disputed whether Wilhelmson should be awarded damages for complications she may suffer in pregnancy and childbirth, said the ruling. Wilhelmson sought an award for fees arising from having a surrogate mother bear a child, while the defendant’s representation argued the “factors are valid, but only in determining general damages to award.”

Wilhelmson’s legal representation had entered a report from Dr. Albert Yuzpe, whom Sharma deemed an expert.

While Yuzpe said Wilhelmson’s fertility status was normal from a “hormonal perspective,” her abdominal injuries put her at risk, as she is prone to adhesion that can occur when there is abdominal trauma, such as medical condition, infection or surgery, which may affect her ability to conceive, according to the ruling.

While paying a surrogate mother for childbirth is illegal in Canada, Yuzpe said it is legal in the U.S.

“I also find as a fact that Ms. Wilhelmson would be putting her health and welfare at great risk, to an unreasonable degree, if she were to carry a baby. I have no doubt that the best option for Ms. Wilhelmson to have a biological child would be to hire a surrogate,” Sharma said.

Conrad Margolis, Wilhelmson’s legal counsel, told the News Bulletin there is the potential the ruling could set precedent.

“Assuming that the judgment of madam Justice Sharma is not overturned, then it’s possible that there’ll be other injured women who will have the unfortunate predicament that Ms. Wilhelmson had, of being unable to carry a fetus to term as a result of injuries from a motor vehicle collision … it is possible that there will be other claims of a similar nature and other court awards that will allow more funding covered by the at-fault driver or the at-fault driver’s insurer to allow for the injured woman to hire a surrogate in the United States,” he said.