Judgment Of The Court Of Appeal In December 2018 Upheld

A woman left infertile when her cervical cancer was spotted more than four years after her initial smear test, is entitled to funds to pay for surrogacy in the USA, the Supreme Court has ruled.

The 36-year-old from London, whose identity is protected by court order and in which she is referred to as XX, was diagnosed with cervical cancer in June 2013. She had a first smear test in December 2008 which was incorrectly reported. There were also several other missed opportunities to diagnose her cancer between December 2008 and June 2013.

She instructed specialist medical negligence lawyers at Irwin Mitchell to investigate the care she received from the Whittington Hospital NHS Trust, which admitted that the care had been negligent.   

The Court of Appeal ruled unanimously that she was entitled to funds to cover the costs of accessing surrogacy services in California where there is a secure legal framework in place for surrogacy.  This differs from the UK system where any agreement between a surrogate and an intended parent is unenforceable.  
 
The NHS appealed that decision leading to a Supreme Court hearing at the end of last year.

Lady Hale, Supreme Court president, has today handed down judgment ruling that the woman should receive funded surrogacy in the USA. She rejected the appeal.

Expert Opinion

“This is a tragic case in which there are no winners.

“The only option available to our client in starting a family is through surrogacy, using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs.

“There is an established legal system in place in California which ensures that the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded.

“Today’s landmark judgment has confirmed that to achieve the family she was denied by the admitted negligence of the Trust, XX is entitled to funds to cover the cost of surrogacy in California as well as the use of donor eggs.

“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.” Anne Kavanagh - Partner

In her judgment Lady Hale said the decision did not mean damages in similar cases would always be awarded. She said that proposed treatments must be reasonable and, but for negligence, there would need to be good reason to believe a woman would have had children.

She added that applications for surrogacy in countries with an unregulated system should not succeed and that the costs involved in cases must be reasonable.

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Background

A Serious Untoward Incident Report into why all of XX’s smear and biopsy specimens had been incorrectly reported found that if her original smear test had been properly reported by the Trust, she could have been treated with a much simpler procedure before she developed invasive cancer, with no impact on her fertility or lifestyle.

When she was diagnosed in 2013 she was advised that chemo-radiotherapy was essential and so she underwent egg harvesting before undergoing a course of treatment.

The woman’s cancer prognosis is good but she has been rendered infertile and will have to rely on surrogacy if she is to have a family of her own. She has also suffered damage to her bladder and bowel as a result of the radiotherapy treatment and suffers on-going daily symptoms as a result.

 In September 2017, Sir Robert Nelson, sitting as a Judge in the High Court, awarded her a settlement for her injuries. This included the cost of undergoing fertility treatment and surrogacy costs in the UK for two children. 

However, as a result of the experiences which rendered her infertile, the woman has always said that she wants to pursue surrogacy in California where there is a secure legal framework for surrogacy.

Expert psychological evidence presented to the Supreme Court supported XX’s case that she would struggle to cope with the uncertainty of the UK system particularly.

In the UK, at birth the baby is the legal child of the surrogate and her husband - if married - and their names will be on the child’s birth certificate.  The birth certificate can only be changed by court order and the surrogate - and if she is married her husband - must consent to that change.  This is the case even if the child has no biological or genetic relationship to the surrogate.  

By contrast in California XX can obtain a pre-birth court order naming her as the legal parent of the unborn baby, thereby protecting the baby, the surrogate and herself.  She is responsible for that baby including any medical needs as well as those of the surrogate and there is a legally binding contract in place.

The case was presented in the Supreme Court by Christopher Johnston QC and Claire Watson, of Serjeants Inn Chambers both of whom had also appeared in the Court of Appeal.