Tag Archives: Surrogacy

Favourable changes in claims for surrogacy

As a firm we have previously acted for clients who have lost the ability to conceive and carry a child naturally as a result of medical negligence.  Until very recently our hands have been tied as to what our clients could claim for.  We have been able to recover as compensation the costs of IVF treatment and in some cases for our clients to engage a surrogate in the UK to carry a child on their behalf and the expenses associated with this but there are strict limits which reflect the current law in the UK which in turn have meant a limit on compensation levels.

Despite surrogacy becoming increasingly popular and accepted, the law in the UK has not quite kept up with this so while surrogacy is legal, it is also restricted, particularly when compared to the laws in other countries such as the USA.  Notably:

  1. In the UK no one can profit from surrogacy.  Therefore the surrogate can only claim her expenses.
  2. In the UK, once the child is born, the surrogate is regarded as the legal mother.  This is even the case where the surrogate has carried someone else’s biological child.  A court order is required to give the intended parents the correct legal status and it is possible for the birth mother to refuse to part with the child.
  3. In the UK, the surrogate will chose the parent/parents she wants to assist.  This is often done at “parties” which can be intimidating and frightening for couples who have already been dealt a vicious blow.

In the recent case of XX and Whittington Hospital NHS Trust (2017) EWHC 2318 QB, a High Court Judge held that XX’s claim for the expenses of using a surrogate in California where commercial surrogacy is widely accepted and legal were not recoverable because commercial arrangements in the UK were illegal and it was against public policy.  He therefore limited XX’s claim to using her own egg’s and a surrogate in the UK and the associated costs of that.  The total compensation he allowed for this was £74,000 which was intend to produce two children.

Despite the damning judgement, the Judge did suggest that the Supreme Court which is the final court of appeal in the UK may see things differently.  XX was therefore allowed to appeal this decision and the matter was heard at the Court of Appeal in November 2018.  The outcome was that her appeal was successful and it was held that she should not be barred from recovering reasonable compensation for her loss which would include the costs or entering into a lawful commercial surrogacy contract in California.  She would not be breaking any laws.

This is an exciting development in this area of the law.  Claimants from the UK who need to engage a surrogate can now claim the costs entering into a contract with a surrogate in the USA who essentially carries and gives birth to other people’s children for a living.  Claimant’s will now no longer be restricted to having to use their own eggs but will be able to use donor eggs from a surrogate of their choice or another donor and they will be able to return to the UK with the child legally theirs.

The obvious downside to this in terms of the “public purse” is the difference in cost.  In the USA, to produce two live births via a surrogate the associated costs will run into perhaps hundreds of thousands but to someone who has been told they will not be able to have a child, no amount of compensation can restore them to how they would have been but for the negligence.

If you have been affected by infertility as a result of failed or unacceptable medical treatment, please contact us to discuss this further.

Ashleigh Holt – January 2019

Surrogacy

Surrogacy has been in the news a lot recently after a high profile case involving baby Gammy, born to a Thai surrogate for an Australian couple. The surrogate gave birth to twins only to have the parents reject one twin who was born with Downs Syndrome. The story took a turn for the worse when it was established that the father in possession of the other twin, was actually a convicted Paedophile in his native Australia. Surrogacy in Thailand had allowed him a way to get around national adoption/surrogacy laws preventing him from becoming a father. This story created an outcry both in Thailand, now attempting to ban the removal of surrogate babies from their country, to Australia and the rest of the world. Surrogacy and its pitfalls/legality are very much in the public eye at this month.

What may not be known is that Surrogacy is legal in the UK, provided it is not done for profit. The Surrogates reasonable expenses associated with the pregnancy can be covered but no baby can be “bought” from a surrogate. For this reason many surrogacies tend to involve family members or friends as it unusual, but not unknown, for a surrogate to do this for a couple they do not know, that said this does happen. There are specialist solicitors around the country who deal with surrogacy agreements and the law that surrounds the arrangement.

As clinical negligence lawyers we have encountered  medical mistakes resulting in the loss of a patient’s ability to conceive and carry a baby or the partial loss of fertility requiring IVF treatment with or without egg donation. The loss of the ability to conceive or carry a child can be one of the most devastating outcomes of medical negligence to a woman. If this has occurred we can advise you on your possible claims.

Joanne Dennison – September 2014