Surrogacy Costs Included As Part Of Medical Negligence Settlement


A recent decision in the High Court awarded a Claimant damages to fund the costs of commercial surrogacy as part of her claim for medical negligence.

The case of XX v Whittington Hospital NHS Trust was heard in the High Court in December 2018.

The Claimant initially underwent a smear test in December 2008, which came back as normal. Over the next three years, she repeatedly sought assistance from the Colposcopy clinic at the Whittington Hospital, but was told that everything was fine, with some members of staff even suggesting she was neurotic.

She was subsequently diagnosed with grade 2b cervical cancer in June 2013. It later emerged that all samples from December 2008 onwards had been inaccurately and incorrectly reported. Due to the failure to diagnose her earlier, she required a full course of chemo-radiotherapy, rendering her infertile.

The Claimant had always wanted a family of her own, so opted to harvest some of her eggs prior to undergoing the chemo-radiotherapy. This would make it possible for her and her partner to have their own family once they were able to find a suitable surrogate.

They carefully considered their options and decided that California would be the most secure and well regulated place that would allow them to have the family they desired.

Commercial surrogacy in California is expensive; commonly costing between $90,000 and $130,000. The Claimant could not afford this and sought to recover the cost of it as part of her damages for her claim against the Trust.

The High Court agreed with the Claimant, awarding her damages to fund the costs of her surrogacy, declaring it to be reasonable in the circumstances.

Commenting on the case, David Gabell, solicitor specialising in Clinical Negligence at Fosters said "I am pleased that the Claimant was successful with her claim and is able to continue with her plans to have a biological family of her own. This is a victory for women who have been deprived of their right to have biological children due to the negligence of their medical practitioners."

If you or a loved one have been the victim of medical negligence and wish to explore pursuing a claim, please contact our specialist solicitors in Norwich on 01603 620508, or for a free no obligation chat.

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