UK Supreme Court dismisses NHS appeal over damages payment of US surrogacy

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A woman left infertile by the negligence of a hospital is entitled to recover damages to pay for surrogacy in the US, the UK Supreme Court has ruled. A Law Gazette report notes that in Whittington Hospital NHS Trust v XX, justices dismissed by a majority an appeal from the National Health Service (NHS), ruling that as long as the surrogacy arrangement had a chance of success, damages for reasonable costs of it may be awarded.

The claimant had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012, with each test wrongly reported by the London hospital. When errors were detected, her cervical cancer was too advanced for her to have surgery which would preserve her ability to bear a child. She instead had eight eggs collected and frozen before chemotherapy.

Her preference was for surrogacy arrangements in California on a commercial basis. The court was asked whether damages could be recovered to fund surrogacy arrangements. Judges were also required to decide whether to award damages to fund the cost of commercial surrogacy arrangements in a country where this was not lawful.

Lady Hale, giving the majority judgment, explained that under UK law, surrogacy arrangements were completely unenforceable, but there was nothing to stop agencies based abroad from making surrogacy arrangements. Anne Kavanagh, senior associate with national firm Irwin Mitchell, which represented the claimant, said this remained a tragic case in which there were no winners. Kavanagh added: “Our client is relieved that this matter, which has consumed more than 10 years of her life, is over. We will continue to support XX as she now attempts to look to the future and hopefully realise her dream of having the family she has always wanted.”

Full Law Gazette report

Full Jurist report

Judgment

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