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Young Woman Left Infertile Following Cervical Cancer Diagnosis Delays Seeks Costs Of US Surrogacy In Court Of Appeal

London Woman Seeking Californian Agreement Which Will Provide More Legal Security

07.11.2018

Andrew Hewitt, Press Officer | 0114 274 4255

A young woman who was left infertile because her cervical cancer was only spotted more than four years after her initial smear tests were incorrectly reported has taken her case to the Court of Appeal. 

The 35-year-old from London, who wished to remain anonymous, 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 other missed opportunities to diagnose her cancer between 2008 and 2013.

She 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.   

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.

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. She has been rendered infertile through no fault of her own and does not see why she should have to rely on the charity of strangers now in order to become a mother.

Expert Opinion
“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.

“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 asking the Court of Appeal to grant 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 the baby in the event of any dispute, something which would not be available to her under English law.

“The expert psychological evidence submitted supports the client’s case that she will struggle to cope with the uncertainty of the UK system particularly given that none of this was her choice. The client seeks the costs of US treatment which would be lawful in the UK but using the Californian system.”
Anne Kavanagh, Associate Solicitor

Christopher Johnston QC and Claire Watson of Serjeants Inn Chambers will represent the client before the Court of Appeal.

The hearing begins on 7 November, 2018.

Find out more about Irwin Mitchell's expertise in handling medical negligence cases.