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As of 1st April 2020, a person is entitled to claim surrogacy costs if they have been left infertile because of clinical negligence. This is a recent develop which stemmed from the case of Whittington NHS Trust v. XX [2020] UKSC14 (XX’s Case). This article will explore surrogacy, XX’s Case, the legal differences surrounding surrogacy in the United Kingdom and California and the changes made using a surrogate mother in the United Kingdom.

What is surrogacy?

Surrogacy is usually facilitated by a surrogacy arrangement where a woman (the surrogate mother) gives birth to a child for the benefit of another (the commissioning parent(s)). In instances where women or same sex couples are unable to carry a child themselves, surrogacy presents an opportunity to either start or extend a family. Following delivery of the child, the commissioning parents are then able to apply for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. Such an order will usually make clear that the child is to be treated as the child of the commissioning parents. However, the court will only make such an order if certain criteria have been satisfied. It is important to note that whilst surrogacy is legal in the United Kingdom, the Surrogacy Act 1985 prohibits the exchange of money for surrogacy arrangements and the advertisement of surrogacy as a service. However, the Human Fertilisation and Embryology Act 2008 amended the position to permit non-profit-making bodies to charge a reasonable fee to recover their costs. The restrictions surrounding surrogacy in the United Kingdom has made it more common for commissioning parents to seek surrogacy services abroad where such restrictions do not exist.

XX Case’s

XX unfortunately developed cervical cancer because of negligent failures in the care provided by Whittington Hospital. She underwent cervical smear tests in 2008 and 2012 and two biopsies in 2012, all of which were incorrectly reported. If the smear test from 2008 been reported correctly and XX was provided the appropriate medical care, she would have had a 95% chance of a complete recovery and would not have developed cervical cancer.

XX’s cervical cancer was diagnosed in 2013 and by this time it was so far advanced that she required chemo-radiotherapy, and this is what caused her infertility. XX underwent ovarian stimulation and egg collection and was able to get eight of her eggs frozen prior to chemo-radiotherapy treatment. XX and her partner came from large families and it was always XX’s desire to also have a large family. XX pursued a claim against Whittington Hospital NHS Trust to seek compensation to cover the costs of surrogacy (amongst other things). Focusing on the surrogacy aspect, XX’s objective here was to enable her to have children using two of her own eggs and two donor eggs. However, under section 1A of the Surrogacy Act 1985, no surrogacy arrangement is enforceable by or against any persons making it. As such, XX chose to use a Californian surrogate mother and wanted to recover the Californian surrogacy costs.

Legal difference between the United Kingdom and California

In the United Kingdom, the surrogate mother chooses the intended parent(s). This means that someone seeking a surrogate mother would need to attend surrogate events to be selected. The surrogate mother is not allowed to be paid to act as a surrogate mother and is only able to recover reasonable expenses. The surrogate mother is the one listed on the child’s birth certificate. This can only be changed after the child is born if the intended parent(s) applies for a Court Order and the surrogate mother agrees to the change. There is a further risk that the surrogate mother may refuse to give the child to the intended parent(s) and if this happens, the intended parent(s) would need to apply to Court for an Order permitting the child to live with them. Even if the intended parent(s) applies for such an order, there is no guarantee that this will be granted as the Court’s paramount consideration is for the welfare of the child. In short, there are several obstacles surrounding surrogacy in the United Kingdom which is understandably not ideal for those who have already faced a lot of hardship in their journey to parenthood.

By contrast, commercial surrogacy in California is well established and surrogacy agreements are legally binding. Intended parents can obtain a Pre-Birth Order from a Californian Court which identifies them as the legal parents of the unborn child. This clarity protects the surrogate mother, the intended parents and the child and eliminates any uncertainty from the process. The system in California is faster as the surrogate mothers are paid for their services so the intended parents avoid waiting indefinitely to identify a surrogate mother and they also can select who they wish to act as their surrogate mother.

Changes made with using a surrogate mother in the United Kingdom

XX’s case was initially heard in the High Court where she was refused the costs associated with pursing surrogacy in California. XX appealed this decision and the case went to the Supreme Court. On 1st April 2020, the Supreme Court confirmed that the costs of foreign commercial surrogacy arrangements (such as those in California) can be recovered in damages awards as part of a clinical negligence claim providing specific criteria is satisfied.

Firstly, the claimant must demonstrate that if the negligence had not occurred, then they would have been able to have the number of children that the surrogacy costs are claimed for. The proposed treatment must therefore be reasonable.

Secondly, it must be reasonable for the claimant to seek a foreign surrogacy arrangement instead of a non-commercial United Kingdom surrogacy arrangement. Here, expert evidence will be needed to demonstrate the claimant would struggle with the stress and uncertainty of the current system in the United Kingdom surrounding surrogacy. In addition to this, the surrogacy arrangements in the foreign country must also be well established to ensure the claimant, the surrogate mother and the child are properly safeguarded.

Finally, the costs involved here must be reasonable. In theory, the costs of the fertility treatment, egg donation, payments to the surrogate mother, legal costs (in both jurisdictions) and commercial surrogacy agency fees are recoverable. In addition to this, there is also the possibility of recovering disbursements such as loss of earnings, travel, accommodation and out of pocket expenses relating to surrogacy abroad. However, the claimant will need to demonstrate that but for the clinical negligence leading to infertility, such costs would not have arisen.

XX suffered a traumatic and life-changing injury but her case has shown that it is now possible for one to seek compensation to cover the costs of foreign commercial surrogacy arrangements using their own eggs or donor’s eggs.

Lyons Davidson has a large, dedicated and highly skilled team that understands the impact medical mistakes can have on one’s future, ability to work and the burden often placed on others. Our team has worked together and helped thousands of people obtain financial compensation providing them with a better future. If you would like to find out more or discuss a potential clinical negligence claim, please contact us on 0117 904 6000.