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Wednesday, 19 December 2018

Woman left infertile through NHS negligence awarded costs of surrogacy in US

Written by Sam Tobin

A young woman left infertile because her cervical cancer was not spotted for more than four years has been awarded the costs of having surrogate children in America by the Court of Appeal.

Whittington Hospital NHS Trust admitted negligence in failing to detect signs of cancer, leading to the woman, known only as XX, developing highly invasive cancer requiring chemo-radiotherapy treatment, which left her infertile at the age of 29.

The High Court awarded XX a total of £580,000 in damages last year, including the costs of fertility treatment, cryopreserving her eggs and having children by surrogacy in the UK.

However, XX's claim for the costs of four surrogacies in California, where commercial surrogacy is legal and binding, was dismissed as the court found that commercial surrogacy was still illegal in the UK and therefore contrary to public policy.

But, giving judgment in London on Wednesday, senior judges allowed her appeal, meaning XX will now receive as much as an additional £560,000 to cover the cost of having children with commercial surrogates in the US.

Her solicitors Irwin Mitchell say the ruling is the first time the costs of surrogacy in the USA have been awarded in a claim for clinical negligence.

Lord Justice McCombe, sitting with Lady Justice King and Lady Justice Nicola Davies, said: "Clearly, Ms X proposes to do nothing which is unlawful on her part.

"There is nothing in our statute which tells us that what she wants to do is in any way counter to the law or the morals of UK statutes."

Finding that the ban on commercial surrogacy was "expressly limited to acts done in the UK", the judge said that "there seems to me to be an incoherence in depriving her of her claim at the outset when she personally proposes no wrongdoing, either under Californian law or under our own law".

Lord Justice McCombe added that it "cannot conceivably be said now that surrogacy as such is contrary to the public policy of our law", and that it would be "overkill" for the court to prevent XX recovering the cost of surrogacy in California.

Whittington Hospital NHS Trust argued at a hearing in November that awarding XX the costs of commercial surrogacy would be "enabling what amounts to a criminal offence".

Lord Faulks QC, for the Trust, said a 2001 Court of Appeal ruling, which held that the cost of commercial surrogacy in California was irrecoverable, was "binding".

But XX's barrister Christopher Johnson QC argued that public policy had moved on.

He added that his client had "suffered a litany of admitted failures at the defendant's hands" which caused "progression from a benign wholly treatable pre-cancerous condition to a highly invasive cancer".

He concluded: "In Ms X's traumatic and unusual circumstances expenditure on California surrogacies is reasonable."

Lord Justice McCombe agreed that public policy was not "ossified for all time", finding that "the law no longer requires a bar to recovery of the damages claimed by Ms X on public policy grounds".

The court also reduced the amount of general damages awarded to XX by £10,000.

XX's solicitor Anne Kavanagh from Irwin Mitchell said: "This is a tragic case where, due to no fault of her own, my client has suffered grievous injuries including infertility at a young age.

"It is now almost 10 years since her first smear test was wrongly reported by the Whittington Hospital, when she was 25 years old.

"Her only hope of becoming a mother is by surrogacy using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs.

"She is delighted that the Court of Appeal has granted her the costs of that treatment in California, where she will have the security of a legally enforceable agreement to protect her as well as the surrogate and baby in the event of any dispute, something which would not be available to her under English law."

Copyright (c) Press Association Ltd. 2018, All Rights Reserved. Picture (c) Steve Parsons / PA Wire.