The Medical Negligence team at Mayo Wynne Baxter routinely deal with complex obstetric and gynaecology claims. We recognise that medical negligence in these areas affects women’s health and family life. So when the courts awarded compensation to a claimant for commercial surrogacy in XX v Whittington Hospital NHS Trust, we examined this landmark decision in detail.
The claimant, known as XX in these proceedings, attended routine smear tests in 2008 and 2012. These were reported as normal. Over a 3 year period, XX suffered continual discomfort and bleeding. Eventually biopsies were taken in 2012 and 2013 at the colposcopy clinic at Whittington Hospital. These yielded normal results. Remarkably, a repeat smear in April 2013 led to a re-examination of all of XX’s test results, including her biopsies. Sadly XX was notified in June 2013 that she had invasive cervical cancer requiring chemo-radiotherapy.
The Trust underwent its own investigation which found that XX’s samples from 2008 had been misreported.
XX, aged 29 when diagnosed, did not have any children. Before commencing chemo-radiotherapy, XX underwent ovarian stimulation and egg harvest. This resulted in 12 of her eggs being frozen so that she and her partner could have a chance at having biological children. Subsequent chemo-radiotherapy rendered XX infertile and caused permanent damage to her vagina, bladder and bowel.
Liability for failing to identify cervical cancer was admitted by the Trust in February 2016. However, the value of the claim was disputed thus the case proceeded to a trial on quantum in June 2017.
Ruling of the trial judge
XX sought damages in respect of the costs of surrogacy. Her claim was based on the costs of four pregnancies by way of either commercial surrogacy in California, non-commercial surrogacy in the UK, and either using her harvested eggs or those of a donor. The claimant’s preference was to pursue surrogacy in the US where it is lawful and well regulated. XX did not know anyone who would act as a surrogate for her in the UK and was concerned about engaging in arrangements that are unenforceable.
The costs of surrogacy have previously been considered by Lady Justice Hale (as she was then) in Briody v St Helen’s & Knowsley Area Health Authority (2001) where Briody had sought to recover the costs of using a Calfornian surrogate. Hale dismissed Briody’s claim for three reasons; firstly that commercial surrogacy is illegal in the UK; the use of donor eggs was not restorative because it would not allow Briody to have biological children; and it would be unreasonable to award costs given that the success rate of Briody having a live birth using her own eggs was 1%.
Applying Briody, the trial judge Mr Justice Nelson agreed that it would be contrary to public policy for XX to be compensated for the costs of commercial surrogacy. Given that chemo-radiotherapy rendered XX unable to carry a child, he also agreed that the use of donor eggs was not restorative. However, based on the expert evidence before the courts, he considered that XX was likely to achieve 2 live births from her frozen eggs. XX was awarded £580,619 in damages which included £160,000 for pain, suffering and loss of amenity (PSLA). He also granted £74,000 (£37,000 total medical and legal costs per child) for the costs of 2 surrogacies in the UK using XX’s own eggs.
Both XX and the Defendant NHS Trust lodged appeals before the Court of Appeal. XX appealed on the basis that it was incorrect of the trial judge not to compensate her for the costs of commercial surrogacy and for the use of donor eggs. The Defendant NHS Trust also appealed on two grounds; firstly against any costs whatsoever, and secondly that the compensation for PSLA was too high.
The Court of Appeal unanimously allowed XX’s appeal. They found that XX could not be denied the costs of using a US surrogate because it is not unlawful under either English or Californian law to access commercial surrogacy in California. Similarly, they ruled that there should be no differentiation between XX using her own eggs or donor eggs. The law seeks to put a claimant back in the position that they would have been in had they not suffered negligence, or as close to that position as possible. Thus, if it is not possible to achieve live births using your own eggs, donor eggs would be a reasonable alternative.
The total damages awarded to XX amounted to £1,129,564. In regard to the Defendant’s appeal, the Court reduced the amount awarded in respect of PSLA by £10,000.
The future of surrogacy claims
The current legal position in the UK is not without its difficulties. For every 5 women, there is one potential surrogate. Agreements between the surrogate and the intended parents are unenforceable in respect to presence at birth or reimbursement. The surrogate is the legally recognised mother of the child until an order is granted by the courts. Until such an order, the surrogate, (and her husband if she has one) is named as the parent on the birth certificate, even if the child is not biologically hers. A parental order from the courts requires the surrogate’s consent.
In California, a surrogate is vetted extensively by her agency. Any agreement in relation to appointments, payment, etc. is enforceable. It is also possible to obtain a pre-birth order confirming the intended parents’ legal status to the unborn child. XX’s preference to pursue surrogacy in California is therefore unsurprising.
It is clear from the judgment that strong and compelling evidence is needed for the costs of surrogacy to be awarded. The courts will consider what is reasonable. It is also clear that this case now sets the precedent for allowing surrogacy costs to form a head of loss in clinical negligence claims.
XX v Whittington Hospital  EWCA Civ 2832
Briody v St. Helen’s and Knowsley Area Health Authority (2001) EWCA Civ 1010