Woman left infertile after Whittington Health NHS Trust ‘negligence’ wins case for NHS to pay surrogacy costs in USA

Whittington Health NHS Trust. Picture: PA WIRE

Whittington Health NHS Trust. Picture: PA WIRE - Credit: PA Archive/PA Images

A woman left infertile after Whittington Health NHS Trust failed to spot her cervical cancer can now recover the cost of commercial surrogacy treatment abroad.

XX was left infertile at the age of 29 after the trust negligently failed to detect signs of cancer on multiple occasions between 2008 and 2012, a mistake for which the trust admitted liability early on.

By the time XX’s cancer was detected in 2013 it was too far advanced to treat through surgery, which would have preserved her ability to have children.

Before she underwent chemotherapy, XX had eight of her eggs frozen and collected to keep her dream alive of one day starting a family.

The ensuing legal battle was over who should pay for the surrogacy treatment she desired.

XX was initially awarded £580,000 in damages but the High Court blocked further payments to cover the cost of commercial surrogacies in California because the practice is illegal in the UK.

But the Court of Appeal overturned this decision in December 2018, ruling that XX was entitled to an additional £560,000 to cover the cost of having children with commercial surrogates in the USA.

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The trust took the case to the Supreme Court, arguing that the Court of Appeal was mistaken in awarding the additional damages. This paper understands the trust took the case to the Supreme Court because an arms-length organisation called NHS Resolution, which manages negligence claims for NHS trusts, wanted to clarify the law.

In a judgment announced via livestream on Wednesday, the Supreme Court decided by a 3-2 majority that XX could recover the costs of commercial surrogacy in the US.

A spokesperson for Whittington Health NHS Trust said: “When it handed down its judgment, the Court of Appeal recognised that this case raised an important point of law of and that it had not followed its own previous decisions. As a result, there was uncertainty as to the state of the law in relation to surrogacy arrangements. In the absence of clear law in this area it was right that NHS Resolution sought to clarify this uncertainty is by way of an appeal to the Supreme Court. We are grateful to the Supreme Court for its considered judgement and wish the patient involved every success as she begins the process of starting a family.”