Surrogacy law not only comes into play when intended parents wish to engage in a surrogacy arrangement, it can also be considered when determining the damages claim where there has been a missed diagnosis or a late diagnosis.  In the case of XX v Whittington NHS Trust [2017] EWHC, the claimant sought damages in a civil claim to enable her and her partner to enter into a surrogacy arrangement in California, having harvested some of her eggs before undergoing chemotherapy.

The defendant, Whittington Hospital NHS Trust, admitted negligence in failing to detect signs of cancer from smear tests taken in 2008 and 2012 and biopsies in 2012 and 2013.  As a result of this negligence, the claimant developed invasive cancer of the cervix, for which she required chemo-therapy treatment which led to infertility and severe radiation damage to her bladder, bowel and vagina, preventing the claimant from carrying her own children.  The High Court had to consider a number of aspects in this case under the claim for damages and emotional trauma to the claimant, aged only 29 at the time.  The High Court awarded a total payment of £580,612.52, which incorporated a claim for two surrogacy arrangements in the UK.

The High Court rejected the argument that the claimant should be awarded damages to enter into a commercial surrogacy arrangement that would be unlawful in this jurisdiction.  However, the court did award damages to the claimant to undergo two surrogacy arrangements in the UK, totalling £74,000 and £37,000 each plus VAT for each arrangement.  It appears that the High Court placed emphasis on the fact that commercial surrogacy arrangements are still illegal in the UK and contrary to public policy.

Since that judgement was handed down, the trial judge has granted permission to appeal against the decision to refuse California surrogacy expenses and the cost of surrogacy using donor eggs. In granting that permission to appeal, the judge concluded that there was a public interest in the higher appellate courts examining the question of recover-ability of damages for the cost of commercial surrogacy in a jurisdiction where this activity is lawful.

It will be interesting to see what happens next in terms of any awards for overseas surrogacy arrangements which will attract a much higher award of payment.

The use of a family law expert in this case was vital to identifying costs of surrogacy in the UK and abroad, and is an area in which most negligence lawyers need to be familiar. For more information, or some preliminary, confidential advice please contact Anne-Marie Hamer, our Fertility & Surrogacy expert.