Can I claim for surrogacy costs after medical negligence?

Parents caring for their baby
3 minute read

At Enable Law we’ve helped many families following the stillbirth or neonatal death of their baby. We understand that the pain and loss the parents have suffered can never be fully compensated, but for some clients the compensation involved in their claim is an essential part of building their family.

When parents lose a baby due to negligence by a medical professional, we help them claim for a variety of the financial losses they have suffered as a result. This includes the cost of the funeral and layette, which covers anything that was purchased in readiness for their baby’s birth.  Depending on what our client wants to do next, we can also claim for the costs associated with having another baby. This includes the mother’s pain and suffering of going through another pregnancy and delivery, and financial costs such as private medical treatment, additional appointments for scans, travel expenses to and from appointments and any loss of earnings that the mother will suffer as a result of her additional pregnancy.

Unfortunately, sometimes losing a baby leads to infertility, or the baby that was lost was the result of expensive fertility treatment.  When this has happened to our clients, we can try and help them achieve another pregnancy by claiming the compensation needed to pay for fertility treatments like IVF.

We have successfully claimed IVF, egg donation and surrogacy costs for parents who have suffered a stillbirth or neonatal death and been left infertile.  We regularly claim for the cost of fertility tests and IVF treatment (with or without egg donors) to ensure every client has the best chance to complete their family.

Claiming for surrogacy costs after medical negligence

Surrogacy in the UK

A relatively recent change in the law better reflects modern families in Britain. Following the Court of Appeal Judgment in the case of Whittington Hospital NHS Trust v XX [2020] commercial surrogacy abroad using donor eggs can now be claimed in some cases. To do this, the Court will decide whether the proposed programme of treatments is reasonable, whether it is reasonable for the mother to seek foreign commercial surrogacy, and there must be a reasonable arrangement for the costs.

The reason that parents may want to find a surrogate overseas is that in the UK, the law states that the woman who carries the child is the legal mother when the child is born. This means that for parents using a surrogate, in order to be the legal parents of the child, a parental order (court application) is needed after the child has been born.  Due to this legal requirement, UK surrogacies can be extremely stressful for the parents using the surrogate, as there is always the risk she will change her mind and decide to keep the baby. In addition, commercial surrogacy is not legal in the UK (other than paying for the surrogate’s reasonable expenses) and so you can’t choose a surrogate and enter into a commercial arrangement with her. Instead, the intended parents have to be chosen by the surrogate, which can be a difficult process to go through.

Surrogacy overseas

Commercial surrogacy overseas, in particular in some US states, is much better established and so the process is more streamlined and far quicker.  In the US, the intended parents can request the Court makes a pre-birth declaration of parentage, which puts the names of the intended parents on the child’s birth certificate, making the process far less stressful.  The intended parents can also choose their own surrogate, unlike in the UK.  However, commercial surrogacy abroad can be an expensive process.  We have successfully claimed for overseas surrogacy costs for a client who suffered the stillbirth of her baby, making this avenue possible for her where it otherwise may not have been.

There are various costs that we can claim in a surrogacy case, including the legal costs of setting up the surrogacy, the surrogate’s costs, the surrogacy agency’s costs, travel, accommodation and immigration costs, healthcare insurance for the surrogate and baby whilst in the US, and other costs associated with travel to the overseas country.  It is likely the intended parents will need to visit the surrogate before and during the birth and spend some time after delivery with their new baby before they travel home.

If the claim is successful, the damages agreed will then enable the bereaved parents to complete their family through commercial surrogacy, if this is what they choose.

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