Supreme Court ruling: NHS trust whose negligence left woman infertile must pay for her US surrogacy

In the Supreme Court in the case of XX, Whittington Hospital NHS Trust in north London negligently failed to pick up abnormalities in the young female Claimant's cervical smear tests carried out in 2008 and 2012. It also negligently interpreted biopsy results in 2012. These errors were eventually picked up in 2013 when the Claimant was 29. By this time, her cancer was too advanced for her to have surgery to preserve her fertility and although she survived the cancer she was left infertile.

The Claimant had always wanted a large family with four children. The question that the Supreme Court had to address was whether the costs of having her desired family should be paid by the Defendant. The current law is that surrogacy arrangements in the UK are unenforceable but in other jurisdictions, including California, such arrangements are legally enforceable. 

Compensation in negligence ought to put the injured party in the position that they should have been in, had they not been injured. However, compensation could not be awarded where it would be contrary to legal or public policy or unreasonable to do so.

Previously the law stated that compensation for own egg surrogacy in the UK was permissible providing that the treatment had reasonable prospects of success. However, surrogacy through donor eggs and overseas surrogacy was not allowed.

The Court led by Lady Hale found that the Claimant was entitled to go to the USA and arrange surrogacy there and UK law did not prevent her from doing so. The Supreme Court has now therefore overturned the law in regard to the latter two limbs. They are no longer contrary to public policy and will be allowed provided that the treatment and costs are reasonable.

Clinical negligence partner Janice Gardner comments: "This is a long awaited decision which brings the law up to date with society's views on assisted reproduction which is now widespread and accepted as a societal norm."