Woman can ‘realise her dream’ of children after court landmark

AYOUNG woman left infertile because her cervical cancer was not spotted for more than four years may finally “realise her dream of having the family she has always wanted” after a landmark Supreme Court ruling.

“XX” was left infertile at the age of 29 after Whittington Hospital NHS Trust – since renamed Whittington Health NHS Trust – negligently failed to detect signs of cancer, which led to her developing highly invasive cancer that required chemo-radiotherapy treatment.

XX, now 36, says one of her “central ambitions in life” is to have her own family of four children and that, despite the “profound, distressing and life-altering injuries” caused by her treatment, her loss of fertility is her “major concern”.

The trust had previously admitted liability for the failings in XX’s care and the Supreme Court was told that, had appropriate action been taken sooner, there was a 95% chance of a complete cure and she would not have developed cancer at all.

She was initially awarded £580,000, but the High Court refused to award damages to cover the costs of four commercial surrogacies in California, where the practice is legal and binding, as the practice is illegal in the UK.

The Court of Appeal overturned that decision in December

2018, ruling that XX was entitled to as much as an additional £560,000 to cover the cost of having children with commercial surrogates in the US.

But the trust – supported by NHS Resolution, formerly the NHS Litigation Authority – took the case to the UK’s highest court, arguing that the Court of Appeal was wrong to award the additional damages because commercial surrogacy is “contrary to public policy”.

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

Giving the majority judgment, former president Lady Hale – ruling on the last Supreme Court case she heard before her retirement in January – said “it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy”.

She said the UK’s laws on surrogacy are “fragmented” and that any surrogacy arrangement undertaken in the UK is “completely unenforceable”, meaning it was “scarcely surprising that the claimant’s clear preference is for a commercial surrogacy arrangement in California”.

Lady Hale added: “Nothing which the claimant proposes to do involves a criminal offence either here or abroad.”