Court Awards Costs of Surrogacy to a Woman who was Rendered Infertile as a Result of NHS Negligence
The case of XX v Whittington NHS Hospital Trust was heard in the High Court in September 2017; as a result the claimant was awarded compensation to cover the cost of two rounds of surrogacy in the UK. Although claiming surrogacy costs has previously been possible, the Courts have been reluctant to do so, and this is the first case in the UK where the claimant was successful in having surrogacy costs awarded.
In this case the claimant was a 29 year old woman who suffered from a delayed diagnosis of cervical cancer. The delay in diagnosis meant that she required chemo-radiotherapy treatment which led to infertility. She was utterly devastated by the news that due to the delay in diagnosing the cancer, she would never be able to conceive or carry a child. The claimant chose to undergo a cycle of ovarian stimulation before her cancer treatment so that her eggs could be harvested and preserved.
The judge decided that as the prospects of success of a live child being born were reasonable, an award for UK surrogacy costs should be made. The Judge awarded £74,000 to cover the surrogacy costs of having two children. The total claim settled for £580,618.52.
This is great news for claimants as it shows a new willingness by the court to award damages for surrogacy to compensate women for their infertility.
The claim to use donor eggs
However, the story does not end there. Although this is a step in the right direction, the judge did not award damages for the cost of donor eggs if these were needed. The reasoning followed a general principle, that the purpose of damages is to restore a claimant to the position they would have been in, if they not suffered the negligent treatment. The judge said that the loss that the injured mother sustained was the inability to have ‘her’ child, not ‘a’ child and so she could not claim the cost of donor eggs. This part of the claim is being appealed by the claimant and it will be interesting to see what happens next. Society’s view of what makes up a ‘family’ is ever developing and it is important that the law keeps up with this.
The claim for commercial surrogacy
Surrogacy in the UK is permitted, however, commercial agreements are not legal, and so a surrogate cannot be paid to carry the child. The surrogate mother can only be paid reasonable expenses; for instance, expenses to cover the cost of purchasing maternity clothes. This is unlike in California where a surrogate can be paid a sum of money just for being the surrogate, on top of any expenses they may incur.
In addition, with commercial surrogacy ( e.g. in California) the system is well established, and the intended parents can obtain a pre-birth order from the Californian court confirming their legal status in relation to the surrogate child. This is very different in the UK where the surrogate mother is the legal mother of the child. In theory, although it is rare in practice, the surrogate mother could refuse to give the child to the intended parents. It is necessary for the intended parents to apply to the courts in the UK for a parental order post birth. This is why commercial surrogacy in California is likely to be more attractive to intended parents. It is, however, far more expensive than surrogacy in the UK with the cost being around £100,000 more per child.
In the case of XX, the claimant claimed for the costs of commercial surrogacy, so they could travel to somewhere like California where the process has more certainty. However, as there is a public policy prohibition in the UK against commercial surrogacy, the judge agreed that the costs of commercial surrogacy could not be recovered as part of the claim. Nor can the expenses which are in excess of “reasonable” be awarded.
The judge’s decisions not to award the claimant with costs to cover commercial surrogacy or the costs of using donor eggs are being appealed. The appeal is going to be heard by the Court of Appeal in October this year. We will be watching this space carefully and will update future claimants with the outcome of that decision in due course. If this element of the decision is overturned it will be even better news for claimants and will offer them more flexibility with the surrogacy options available to them.
Get in touch
This decision is very positive to anyone who has suffered infertility due to negligent treatment. It gives reassurance that the Courts are willing to actually make awards for surrogacy costs in the UK. We consider this is a positive step for access to justice for these women.
Claire Leslie is a senior lawyer at Enable Law, and has experience working for women with fertility issues and is actively pursuing claims for surrogacy costs on behalf of our clients.