After the accident in which Mikaela Wilhelmson received her devastating injuries

If you want to test the winds of social change, pay attention to the courts. The decisions that judges hand down are a good index of what is becoming socially acceptable, even if they are challenged or overridden by legislation.

A good example of this occurred last month in Vancouver in a motor vehicle accident compensation case. It shows that access to surrogacy is being treated as a human right for people who cannot otherwise have offspring.  

Justice Neena Sharma, of the British Columbia Supreme Court, awarded Mikaela Wilhelmson C$100,000 to cover the cost of hiring a surrogate to bear a child for her after she barely survived a car crash in which her fiancé was killed.

It is believed to be the first payment of this kind in Canada. The money was a component of a payout of $3.83 million from the Insurance Corporation of British Columbia (ICBC).

In 2011 Ms Wilhelmson was a passenger in the back seat of a car when it was hit head-on by cocaine-addled driver who was speeding on the wrong side of the road. She sustained serious damage to her spine and internal organs and was in an induced coma for weeks. The list of her injuries and complications, physical and psychological, makes gut-wrenching reading. It’s not surprising that she was awarded the maximum amount for pain and suffering.

Doctors also told her that a birth would be too dangerous for her. In her judgement, Justice Sharma relied upon an IVF expert who said that Ms Wilhelmson was prone to adhesions and could easily have an ectopic pregnancy.  

Based on the medical evidence presented, I find on a balance of probabilities that Ms. Wilhelmson will have significant difficulties conceiving a child in the future as a direct result of her abdominal injuries from the accident. 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.

Ms Wilhelmson deserves all of our sympathy and compassion. But from a layman’s perspective, this case has some very odd features.

First, commercial surrogacy is illegal in Canada. However, across the border in the United States, it is not, so the $100,000 will be used to pay for an American surrogate. According to the judge, this will not contravene Canadian law.

Second, although Ms Wilhelmson desperately wants a child, she has already had two abortions, one before her accident and one afterwards.

Third, the judge awarded the maximum amount for pain and suffering not because Ms Wilhelmson had lost her fertility, but because she had retained it.

She had an abortion after the accident because doctors said it would endanger her health, a decision which caused her great emotional pain. “Ms. Wilhelmson faces a future where she might be fertile and might be able to get pregnant again, but cannot safely carry a child,” the judge argued. “Other than abstinence, no method of birth control is 100% effective. She therefore faces a possibility at the young age of 26 of again, getting pregnant and having to abort a child that she desperately wants to have.”

Fourth, the judge gave no consideration whatsoever to the welfare of a possible child, who is likely to grow up without a father. The unfortunate woman had been in two relationships before the accident and two afterwards. She is so physically and psychologically damaged now that marriage may only be a remote possibility. So the child will probably be raised by her and her mother. However competent and loving they may be, neither of them is a father.

The unanswered question at the centre of this case is whether Ms Wilhelmson has a right to a child – even if she does not have a husband, even if her health does not permit it, even if the psychological effects of surrogacy are unknown, even if the ethics of surrogacy are controversial, and even if the child will grow up without a father.

This poor woman has unquestionably been dealt a terrible hand. But why does this entitle her to demand a child? The judge has treated a child as material compensation for pain and suffering. It’s a very strange reason to bring another human being into the world.

Michael Cook is editor of MercatorNet.

Michael Cook

Michael Cook is the editor of MercatorNet.