A woman who suffered a complete loss of fertility following a hospitals’ failure to detect cancer has been successful in claiming the costs of surrogacy in California, establishing a new legal precedent which could mean women in similar situations can still raise families using international surrogates.
In the case of XX v Whittington Hospital NHS Trust, the hospital admitted negligence in failing to detect signs of cancer in smear tests and biopsies from between 2008 to 2013. The woman, Mrs X, went on to develop cervical cancer and following chemo-radiotherapy treatment, she suffered a complete loss of fertility and severe radiation damage to her bladder, bowel and vagina.
In 2013, Ms X underwent a cycle of ovarian stimulation and egg harvest which resulted in twelve eggs being harvested and cryopreserved. Ms X and her partner had very much desired to have children and therefore decided to have their own biological children - either by way of commercial surrogacy carried out in California or non-commercial surrogacy in the United Kingdom.
Though lawful in the State of California, commercial surrogacy is illegal in the UK. Non-commercial surrogacy is permitted in this country, but only reasonable expenses may be paid to the surrogate mother, and under the law, the surrogate mother is the legal mother of the child and can refuse to give the child to the intending parents. In order to obtain parental status, the intending parents must apply to an English court for a “parental order” after the birth, of which there is no guarantee it would be successful. In California, however, commercial surrogacy agreements are binding on the parties (the surrogate mother, on one hand, and the intending parents, on the other). The intending parents can obtain a pre-birth order from a Californian court to confirm their legal status as parents of the expected child.
Mrs X claimed for the compensation for her injuries, as well as costs of Californian surrogacy. Although she was unsuccessful initially at trial, she successfully appealed to the Court of Appeal who unanimously allowed her appeal, and awarded her the costs of commercial surrogacy which would be agreed between the parties (estimated between £155,000 and £558,000), as well as £150,000 for her pain, suffering and loss of amenities.
A clinical negligence solicitor with Sydney Mitchell, said, “This is an important case and clearly establishes the right for women to claim for costs of surrogacy which, although legal abroad, are unlawful in England and Wales. It means that the courts have expressly recognised that where a woman suffers a loss of fertility caused by a defendants’ negligence, she can expect to be properly compensated to ensure that she can still have the possibility of raising a family in the future.”
For help and advice please contact a member of the Personal Injury team on 0808 166 8827.
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