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Surrogacy ruling offers hope for women left infertile following clinical negligence

Arti Shah
A long-awaited judgment in the Supreme Court provides hope for women left infertile as a result of proven medical negligence that they may in future be able to claim the reasonable costs of commercial surrogacy abroad.

The judgment, handed down in early April 2020, overturned an earlier ruling in the High Court which established a woman who won a clinical negligence case against the Whittington Hospital NHS Trust for a delay in identifying her cervical cancer could not claim the costs of commercial surrogacy in California because such an arrangement was contrary to UK public policy. The woman appealed the original decision.

In the UK, only certain incidental expenses may be paid to a surrogate, rather than a fee. In contrast, in California and most other US states, entering into a commercial agreement with a surrogate involving a fee is legal.

Incorrect and negligent interpretation of the woman's cervical smear tests and biopsies over four years meant her advancing cervical cancer was missed by clinicians. By the time the cancer was detected, it was too late for surgery and any treatment such as chemo-radiotherapy would leave her unable conceive a child. Before undergoing treatment, the woman harvested several eggs in the hope of having a child via a surrogate.

This landmark ruling now means that reasonable costs of future foreign commercial surrogacy arrangements can now be included in heads of damages in clinical negligence claims.

The majority judgment of 3:2 handed down by Lady Hale did, however, stipulate that such arrangements would be considered case by case rather than be enshrined in law, and only applied to well-established foreign surrogacy destinations which protected the interests of the surrogate, the commissioning parents and the child.

And further positive news for potential surrogates came from New York last week where a bill was passed to allow residents to enter into paid surrogacy contracts from February 2021. Previously, commercial surrogacy was legal, or not expressly prohibited, in every US state except for New York, Louisiana and Michigan.

The legislation, part of the state budget presented during unprecedented times because of the COVID19 outbreak, was described by one of its sponsors as 'a bright spot for New York families in these difficult times'.

I very much hope that clients may now be able to achieve their hope of having a child via a surrogate in the US by being able to claim the costs of such arrangements, or at least may have the option to consider.

In one of my historic fertility cases, a woman underwent what experts agreed was an unnecessary second ERPC (evacuation of retained products of conception) that resulted in her suffering a condition called Asherman's Syndrome. Asherman's causes the uterine walls to adhere to each other and prevents the woman carrying a foetus. My client was subsequently advised that she would never be able to conceive naturally. Desperate to have a family, my client wanted to travel to the US to investigate surrogacy.

At the time, because of the illegality of entering into commercial surrogacy arrangements in the UK, the courts would not accept the costs of someone in this situation travelling to California as part of a claim, making it impossible for many to pursue this option because the costs are too high or because the whole thing is simply too daunting. Although settlement was reached, the case highlighted just how out of date the relevant case law at the time and public policy grounds were to wider changes in society, and modern views as to what constituted a 'family' or 'parenthood'.

Fast forward a few years, and I am pleased the Courts have caught up with 'real life'. I am hopeful that this recent judgment will offer some hope that patients who have received negligent treatment resulting in infertility, and with no other option but to consider surrogacy, will now have the option of potentially including the costs of foreign surrogacy in their claim.

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