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Can costs associated with surrogacy be recovered if medical negligence caused infertility?

View profile for Tom Mooney
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Can costs associated with surrogacy be recovered if medical negligence caused infertility?

Last month the Supreme Court heard the case of XX v Whittington Hospital NHS Trust.

XX is a clinical negligence claim in which the NHS Trust admitted that there was a delay in diagnosing cancer and that, as a consequence of this delay, Ms X required chemotherapy which led to her infertility. It is accepted, by the experts involved in the claim, that Ms X will likely achieve two live births from her 12 cryopreserved eggs. The case therefore relates to whether or not Ms X can now recover the costs associated with surrogacy.

Surrogacy is the act of a woman carrying a pregnancy and giving birth for another person, or persons, who will become the child’s parents after delivery. For women (or same sex couples) who are unable to carry a child themselves, surrogacy provides an opportunity for individuals to start or extend a family.

Surrogacy has been legal in the UK since 1985. However, it is illegal to pay someone to be a surrogate or to advertise surrogacy as a service. As such, many individuals are forced to use surrogacy services abroad where such restrictions do not exist. The costs associated with the surrogacy process are hugely expensive with US estimates often reaching, or exceeding, $100,000. This often means that surrogacy simply isn’t an option for the vast majority of people.

XX was initially heard by the High Court and Ms X was originally refused the costs associated with pursuing surrogacy in the USA. However, the Court of Appeal allowed the appeal. Both Ms X, and many other individuals in a similar position to her, now await the final decision from the Supreme Court as to whether the Court of Appeal’s decision will be upheld or repealed. Judgement is expected in the early part of this year and could have a huge impact of the compensation available to victims of personal injury or clinical negligence.