A woman left infertile by the negligence of a hospital is entitled to recover damages to pay for surrogacy in the USA, the Supreme Court has ruled.
In Whittington Hospital NHS Trust v XX, justices dismissed by a majority an appeal from the NHS, ruling that as long as the surrogacy arrangement had a chance of success, damages for reasonable costs of it may be awarded.
The claimant had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012, with each test wrongly reported by the London hospital. When errors were detected, her cervical cancer was too advanced for her to have surgery which would preserve her ability to bear a child. She instead had eight eggs collected and frozen before chemotherapy. Her preference was for surrogacy arrangements in California on a commercial basis. If this was not funded, she intended to use non-commercial arrangements in the UK.
The court was asked whether damages could be recovered to fund surrogacy arrangements. Judges were also required to decide whether to award damages to fund the cost of commercial surrogacy arrangements in a country where this was not lawful.
Lady Hale, giving the majority judgment, explained that under UK law, surrogacy arrangements were completely unenforceable, but there was nothing to stop agencies based abroad from making surrogacy arrangements.
Nothing the claimant proposed to do involved a criminal offence, so it was difficult to see why the claim should not succeed. Lady Hale said there had been dramatic developments in the law’s idea of what constitutes a family, and this was the closest the claimant could get to being in the position she would have been if she had not been injured. As long as the arrangement had reasonable prospects of success, damages for reasonable costs may be awarded.
The court added the caveat that the costs were unlikely to be reasonable unless the foreign country had a well-established system safeguarding the interests of all involved.
Anne Kavanagh, senior associate with national firm Irwin Mitchell, which represented the claimant, said this remained a tragic case in which there were no winners.
Kavanagh added: ‘Our client is relieved that this matter, which has consumed more than 10 years of her life, is over. We will continue to support XX as she now attempts to look to the future and hopefully realise her dream of having the family she has always wanted.’