Following the Supreme Court’s decision in Whittington NHS Trust v XX [2020] UKSC14 a claimant is now entitled to claim for the costs of using a surrogate if they have been left infertile because of clinical negligence.

XX developed cervical cancer because of failures by Whittington Hospital following two cervical smear tests, and two biopsies, all of which were incorrectly reported. Appropriate medical care after her 2008 smear would have resulted in a 95% chance of complete recovery without the development of cervical cancer. She was eventually diagnosed in 2013 and required chemoradiotherapy which resulted in her infertility. Fortunately, she was able to freeze some eggs prior to her treatment. XX and her husband had intended to have a large family and claimed for the costs of using a Californian, rather than UK, surrogate.

Having concluded that compensation for the costs associated with using donor eggs and/or surrogacy could put XX back into the position she would have been in had she not been deprived of the ability to carry her own children personally, the Supreme Court then determined that it was reasonable for the Defendant to pay such costs, provided that certain conditions were met – including that the proposed arrangements and the costs of these are considered ‘reasonable’. The Supreme Court decision to award XX compensation to pursue arrangements in California highlighted that international commercial surrogacy, using the claimant’s own or donor eggs, is no longer contrary to public policy and is available to a claimant in a country where there are well established safeguards for all parties involved.

These questions of reasonableness will still be a contentious issue in future cases. The main points of consideration will be whether the claimant would have been able to have the claimed number of children but for the negligence, whether the proposed programme of treatments is reasonable, whether it is reasonable for the claimant to seek foreign arrangements (as opposed to non-commercial UK arrangements), and whether the costs claimed are reasonable. Such costs often include fertility treatment, egg donation, payments to the surrogate, legal costs, agency fees plus other expenses such as travel and accommodation (if overseas surrogacy is claimed).

The dilemma which arises for UK claimants is often whether they wish to utilize commercial surrogacy in the USA (usually California) or to remain within UK. Setting aside the obvious logistical difficulties of such an arrangement taking place in the USA, there are a number of important distinctions between the two.

In very brief terms the US, and particularly California, is a well-established commercial surrogacy destination with legally enforceable compensation payments to the surrogate. The parents, rather than the surrogate and her spouse, are the legal parents immediately from birth, often determined via a pre-birth order. Surrogacy agencies are able to screen and vet surrogates and intended parents thoroughly due to this being a commercial situation.

In the UK surrogacy is legal, provided it is altruistic. However, any agreement or contract remains legally unenforceable, and it is the surrogate who is treated as the child’s legal parent until the parental order process is completed, a process which can take months. This has left some children left in ‘legal limbo’ with High Court judges repeatedly called for better regulation of these outdated rules. One example was a baby whose surrogate mother had to remain in hospital post birth due to heath problems, but the baby could not be released from hospital to his waiting parents as the surrogate remained his legal parent.

The stress of such potential problems to a claimant considering UK surrogacy cannot be underestimated, particularly when it comes alongside a clinical negligence claim – already stressful enough in itself!

As noted above the decision in XX does not simply give a green light to all claimants who have been rendered infertile through a defendant’s negligence to claim for the costs of surrogacy within the USA. Defendants continue to resist such claims, often denying that the claimant has committed herself to a US based arrangement, or that UK based adoption has been adequately explored.

In a recent Joint Settlement Meeting I was able achieve a fantastic settlement figure, including US surrogacy costs, for a claimant who had been through a dreadful experience due to the defendant’s admitted negligence, including undergoing a hysterectomy and bilateral salpingo-oophorectomy, without egg retrieval. She and her husband had been actively trying for another baby to complete their family at the time of the negligence. The defendant tried to play hard ball, citing a lack of evidence that she was committed to the process of surrogacy in California, and asserting that she had not properly considered UK based surrogacy options or adoption. Understandably it was difficult for her to look into and demonstrate commitment to having a baby via a surrogate when prior to achieving the settlement, she could not be certain that she would ever actually be able to do so, as financially this would never have been an option without the legal claim. Hoping for a baby only to have those hopes dashed is understandably incredibly distressing for any woman, never mind a claimant who has already suffered psychiatric harm as a consequence of medical negligence. I was able to successfully argue that the stress and uncertainty of the UK system and the fact that her husband’s sperm could be used, making the baby biologically connected to the family which is of course not the case with adoption, made it reasonable to look at US surrogacy arrangement, and alongside proof that the claimant had taken reasonable steps to contact several clinics and agencies with both supportive expert evidence and published costings from the clinics, the defendant agreed to pay the costs of achieving successful surrogacy within California as part of the overall settlement figure.

The look of relief and delight on my client’s face is something that I will never forget.

Please do not hesitate to contact me for advice relating to potential surrogacy claims in any of your cases.

Elizabeth Francis

Atlantic Chambers

0151 236 4421

clerks@atlanticchambers.co.uk