London Woman Was Left Infertile Following Cervical Cancer Diagnosis Delays

A young woman, who was left infertile because her cervical cancer was only spotted more than four years after her initial smear test tests were incorrectly reported, has won a landmark case at the Court of Appeal which means the costs of her surrogacy will be provided.

The 35-year-old from London, whose request for anonymity was granted by the High Court in June 2017, was diagnosed with cervical cancer in June 2013 but she first had a smear test in December 2008 which was incorrectly reported. There were also several further missed opportunities to diagnose her cancer between 2008 and 2013.

The woman instructed specialist medical negligence lawyers at Irwin Mitchell to investigate the care she received from the Whittington Hospital NHS Trust which admitted liability for their failings.    

Today, the Court of Appeal handed down its Judgment in her case, XX –v- Whittington Hospital NHS Trust, and for first time awarded the costs of Surrogacy in the USA in a claim for clinical negligence. 

The Judgment grants her the costs of seeking Surrogacy using her own eggs as well as donor eggs in the USA, in what is the first decision of its kind involving the costs of US surrogacy but applying the existing principles of English law in a claim for medical negligence.  

Anne Kavanagh, a specialist medical negligence lawyer at Irwin Mitchell’s London office representing the woman, said: 

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“This is a tragic case where due to no fault of her own, my client has suffered grievous injuries including infertility at a young age. It is now almost 10 years since her first smear test was wrongly reported by the Whittington Hospital, when she was 25 years old.

“Her only hope of becoming a mother is by Surrogacy using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs. She is delighted that the Court of Appeal has granted her the costs of that treatment in California where she will have the security of a legally enforceable agreement to protect her as well as the Surrogate and baby in the event of any dispute, something which would not be available to her under English law.

“The legal argument centred on the only other case where these issues were considered which was the case of Briody v St Helen’s & Knowsley Area Health Authority [2001] as well as the more recent Supreme Court case of Patel v Mirza [2017] where the Court set out the tests to establish illegality of purpose. In applying those tests in this case the Court of Appeal has found that there is nothing unlawful either in the UK or the USA about what XX intends to do and that she is entitled to be compensated to (as much as possible) restore her to her pre-injured condition.

“The Judgment now handed down restates the principle of restorative compensation and reflects the significant changes in the law around Surrogacy itself and within our society which have taken place over the past 17 years, from the introduction of Civil Partnerships and Civil Marriage to social attitudes to Surrogacy and perhaps central to all of that, the widening definition of what constitutes a family.” Anne Kavanagh - Partner

A Serious Untoward Incident Report into why her all of her 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 finally diagnosed in 2013 she was advised that chemo-radiotherapy was essential and so she underwent egg harvesting before undergoing a course of treatment. Her 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.  

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. 

She has been rendered infertile through no fault of her own and did not want to have to rely on the charity of strangers now in order to become a mother. The Court’s ruling will now allow the woman to pursue that aim.

Christopher Johnston QC and Claire Watson of Serjeants Inn Chambers represented the client in the Court of Appeal.

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