US Surrogacy Costs Now Recoverable in UK Compensation Awards

On 1 April 2020 the Supreme Court decided the case of Whittington Hospital NHS Trust v XX , and with it gave hope to those who have been left infertile because of medical negligence. Under the new rules, if you have been left infertile due to medical negligence, you are entitled to compensation to cover:

1. UK surrogacy costs, using the Claimant’s own eggs
2. UK surrogacy costs, using donor eggs
3. Foreign commercial surrogacy costs (such as those available in California) using the Claimant’s eggs
4. Foreign commercial surrogacy costs using donor eggs

The Supreme Court decision is a welcome change which brings the law closer to current attitudes around commercial surrogacy and modern perceptions of what a family in Britain looks like.

What happened in Whittington Hospital NHS Trust v XX?

In the case of XX, she had sadly developed cervical cancer due to negligent failures in the care provided by the hospital.  Cervical smear tests in 2008 and 2012 had both been wrongly reported, as had two biopsies in 2012.  If the smear test in 2008 had been property reported and appropriate medical care given, XX would have had a 95% chance of a complete cure and would not have developed cervical cancer.

The cervical cancer was diagnosed in 2013.  Unfortunately, by this time it was so far advanced that she required chemo-radiotherapy which made her infertile.  XX underwent ovarian stimulation and egg collection, resulting in eight eggs being frozen before the therapy started.

XX had always wanted a large family, she came from a large family as did her partner.  She brought a medical negligence case against the Defendant Trust to seek a compensation award to cover (amongst other things) the costs of surrogacy to enable her to have two children using her own frozen eggs and two further children using donor eggs.  However, to avoid the problems inherent with UK non-commercial surrogacy arrangements, XX wished to use a Californian surrogate and therefore sought to recover Californian surrogacy costs.

How are UK surrogacy laws different from Californian surrogacy laws?

The laws governing surrogacy in the UK are very different to those of California.  In the UK the surrogate gets to choose the intended parents so anyone needing a surrogate will have to attend surrogate events to be selected. The surrogate is not allowed to be paid for her services (other than to reimburse reasonable expenses) so finding someone willing to be a surrogate can be difficult and take a long time.  More importantly for the intended parents, it is the surrogate and her husband (if married) who are named on the birth certificate of the child.  The intended parent(s) have to apply to the Court for an Order to amend the birth certificate to show their names as the parents and this cannot be done until after the baby is born.  Both the surrogate and her husband have to agree to the change, which they might refuse and this situation is understandably not ideal for intended parents who have already been through so much in their journey to become parents.

There is an additional risk that the surrogate may refuse to give the child to the intended parents, in which case, they have to go to Court to seek an Order that the child is to live with them.  When considering such an Order the welfare of the child is the Court’s paramount consideration.  The surrogacy agreement is a relevant factor but not decisive.  There is a risk that the surrogate will keep the child and/or that the intended parents will not legally become the child’s parents (called parental responsibility).  All this uncertainty around the UK surrogacy process can result in significant stress for intended parents when all they are trying to do is to have or complete their family.

In contrast, in California, commercial surrogacy is well established. Surrogacy agreements are legally binding and intended parents can obtain a pre-birth Order from a Californian court naming them as the legal parents of the unborn baby.  This clarity protects the baby, the surrogate and the intended parents and removes uncertainty and stress from the process.  The Californian system is also faster. Surrogates are paid for their services so the intended parents avoid long waits to locate an altruistic surrogate and they can select who they want to be the surrogate.

What changes has the Supreme Court made about using a surrogate?

The Supreme Court has now confirmed that the costs of foreign commercial surrogacy arrangements (such as those in California) can be recovered in damages awards following clinical negligence subject to the following provisos:

1. The proposed treatment must be reasonable. It will be necessary to show that if the negligence had not occurred the Claimant would have had the number of children that surrogacy costs are claimed for.
2. It must be reasonable for the Claimant to seek a foreign commercial arrangement rather than a non-commercial UK arrangement. Evidence will be needed, probably from a psychiatric expert, that the Claimant would struggle with the uncertainties and stresses of the UK system.  Also, the arrangements in the foreign country must be well established so that the interests of the surrogate, the intended parents and the child are all safeguarded.
3. The costs must be reasonable. In principle, the costs of fertility treatment, egg donation costs, payments to the surrogate mother, fees to UK lawyers, fees to US/foreign lawyers and commercial surrogacy agency fees are all recoverable.  On top of this claims will also be made for travel costs, hotel accommodation, loss of earnings, out of pocket expenses related to the surrogacy abroad that the family would not have needed if the negligence had not occurred.

After suffering an injury so upsetting and life-changing the knowledge that those who then need a surrogate can now seek compensation to cover the costs of commercial surrogacy arrangements abroad, using either their own eggs or donor eggs, is a change to the law that is welcomed.

How we can help you

At Enable Law we act for many women who have tragically been left infertile as a result of, for example, medical mistakes in their cancer or gynaecology treatment or unable to complete their family after their baby has died or been stillborn.

If this sounds familiar and you’d like to talk to one of our team, please contact us.