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The costs of surrogacy: a valid and separate head of claim

20 September 2017. Published by Emma Kislingbury, Associate

A Claimant has been awarded £74,000 for the costs of a surrogacy arrangement, following a hospital's delay in diagnosing cervical cancer.

A claimant has been awarded £74,000 for the cost of two surrogacy arrangements in the UK, as part of a damages award in a negligence claim against Whittington Hospital NHS Trust.

The claimant's cervical tumour developed to stage IIB invasive cancer of the cervix as a result of a delay in diagnosis. Prior to undergoing chemo-radiotherapy treatment, the claimant had 12 of her eggs frozen; the treatment left her completely infertile.

The defendant NHS Trust admitted liability for the delayed diagnosis, but the issue of damages proceeded to trial. The claimant's claim for damages included the cost of four surrogate pregnancies using either her own frozen eggs or, if necessary, donor eggs.

The claimant's preference was for any surrogacy arrangement to be made in California, where commercial surrogacy arrangements are lawful and binding.  She and her partner could then secure parental legal status for any child born to the surrogate mother, without the risks associated with surrogacy arrangements in the UK.

Giving judgment, Sir Robert Nelson rejected the claim for the costs of surrogacy in California (for UK public policy reasons) as well as a claim for the cost of donor eggs, but did allow for the cost of two surrogacies in the UK.

In his judgment, Sir Robert Nelson highlighted some of the difficulties encountered in UK surrogacy arrangements, including:  

  • whilst non-commercial surrogacy is permitted, commercial surrogacy arrangements are illegal;
  • surrogacy arrangements are legally unenforceable;
  • the surrogate mother retains parental legal status. This may result in a refusal to give the child to the intended parents;
  • the intended parents may apply to the court for a parental order, but only after the child has been born, and only with the consent of the surrogate mother.   

The NHS Trust argued that the costs awarded for the surrogacies should be reduced (or dismissed) because the claimant had access to substantial damages awarded for her other injuries. Sir Robert Nelson rejected this argument on the basis that the claim for the costs of surrogacy were a valid and separate head of claim, and the claimant's other damages should not be treated as a substitute.

This case establishes, for the first time, that it is possible to seek damages to fund surrogacy as a separate head of claim. Limitations remain however in relation to the use of donor eggs and overseas surrogacy arrangements.  

In handing down judgment, Sir Robert Nelson acknowledged that attitudes to surrogacy have changed, and continue to change, but made it clear that "such change must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court." A suggestion perhaps that reform is needed, and a possible indication of changes to come.