Beverley Addison comments on a recent personal injury case which included an award of damages for the cost of future surrogacy arrangements to a patient who lost her fertility due to negligent NHS cancer treatment.

The case of XX v Whittington Hospital NHS Trust is the first time that a court has ever allowed quantum of a personal injury action to include the cost of future surrogacy arrangements.

The hospital admitted negligence when they failed to detect signs of cervical cancer in the patient (‘XX’) in smear tests and biopsies carried out between 2008 and 2013. Due to that negligence XX went on to develop particularly invasive cervical cancer which resulted in a number of medical ailments for her, including complete loss of her fertility.

At the age of 29, XX’s ability to have children was high on her priority list and she even went as far as to delay her cancer treatment twice in order to take second and third opinions on whether there was any way for her to undergo fertility sparing surgery, which it was confirmed was no longer an option for her. The only avenue thereafter open to her was to undergo a cycle of ovarian stimulation and subsequent egg harvest to allow her to cryopreserve her eggs for future use through surrogacy.

The patient, through her damages action, sought the cost of four commercial surrogacy arrangements in California. She argued that undertaking a surrogacy arrangement in California would be easier for her as commercial surrogacy is legal there, but not in the UK. Her argument was rejected on public policy grounds, as commercial surrogacy continues to be illegal here and so foreign commercial surrogacy arrangements cannot be recognised by our courts and so cannot form a head of claim for damages.

However, the judge did award £74,000 for the costs of two future surrogacies in the UK following the rules provided under our law. Expert evidence was led to quantify the average cost of each surrogacy arrangement in the UK.

Although an English case, fertility law itself is a reserved matter, and so the legislation considered in this judgment applies to the UK as a whole. The judgment is therefore an interesting consideration for personal injury practitioners who find themselves involved with cases concerning claimants who become infertile through negligent medical treatment.

The idea of compensation to cover future surrogacy arrangements was last considered in 2001, in the case of Briody v St Helens and Knowsley AHA. In this case the claim was rejected due to the low prospects of success for a successful surrogacy taking place in 2001. The current case goes to show just how much fertility treatment has improved over the last 17 years, and the difference that is making to those who have suffered from negligent treatment who may otherwise have been unable to have children.

It will be interesting to see whether this issue arises to be tested in the Scottish courts, but in the meantime this case will provide an incentive for the future costs of fertility treatment to be considered as part of any negligence claim where that need arises.