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January 10, 2018 By Beverley Addison

Surrogacy Costs Awarded to Patient Who Lost Fertility Through Negligent Cancer Treatment

An interesting personal injury case emerged recently 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.

surrogacy-3The 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 (hereinafter ‘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.

Damages action sought cost of commercial surrogacy arrangements in California

The patient, through her damages action, sought the cost of 4 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.

Costs of two future surrogacies in the UK awarded

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 judgement applies to the UK as a whole. The judgement 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 Court, 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.

If you find yourself navigating the complex world of fertility treatment regulation and don’t know where to turn, BTO solicitors has a family law team here to help. You can also check out our page on Assisted and donor conception and our Fertility Fixed Fee Package.

More to Read

babys feet in motherss handsFertility Week 2020: Should I have a Will when accessing fertility treatment? working-mother-with-childThe benefits of employers implementing a fertility treatment policy for staff legal storage limits of frozen eggs, sperm and embryosFertility Week 2020 – The Impact of COVID-19 on Scotland’s Fertility Sector surrogacy2-fSurrogacy Reform Announced by the Law Commission

Filed Under: Children and Family, Family Law in the News, Surrogacy Tagged With: Surrogacy, surrogacy UK

Beverley Addison

Beverley Addison

Beverley is a Senior Solicitor within our Family Law team who specialises in fertility law, including the law of surrogacy, IVF and becoming parents in a modern family. She is experienced in dealing with all aspects of family law including financial provision on separation and divorce, cohabitation and cases relating to children. Read Beverley's professional biography.

What our clients say

Financial knowledge and gravitas

Lesley has financial knowledge and gravitas. I think she is faultless.

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Risk assessed everything

They explained everything to me very clearly and we looked at every permutation and possible outcome and risk assessed everything.

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I have come out of the process a much stronger person

I would have no hesitation recommending Lesley Gordon to anyone I know who needs the services of a divorce lawyer. It was a very positive experience all things considered and I have come out of the process a much stronger person thanks to Lesley.

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Thanks for all the expert guidance through a trying situation

Hi Marjory, my daughter and her son are doing great. Everything seems to have calmed down. She and her husband finished the mediation process after a couple of visits as they both felt they had to step up to the mark for their son’s sake not for personal reasons. Once again thanks for all the… Read more “Thanks for all the expert guidance through a trying situation”

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I was very pleased with how things went today

Hi Beverley – I would just like to email you to thank you for your services today and commend you on doing a stellar job. I was very pleased with how things went today. The level of professionalism you showed was much to my satisfaction and greatly appreciated. I felt very relaxed at having you… Read more “I was very pleased with how things went today”

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My recent collaborative process

Dear Marjory, I just wanted to say a huge thanks for all your help, advice and counsel throughout my recent collaborative process. You definitely made a difficult process easier for me. Thank you.

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Help guiding us through a very stressful time

I would like to thank you again for all your work and help guiding us through a very stressful time.

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Very approachable manner

Many thanks Marjory for your very approachable manner during our meetings.

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Highly professional and meticulous in detail

Highly professional and meticulous in detail. No shortcuts or compromises involved, ensuring all eventualities were covered and underwritten with third-party expertise where appropriate.

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Wonderful job

I would like to thank you Lesley again for the wonderful job you and your team did for me at a very difficult time in my life.

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All starting to come together…

Thanks Marjory, it’s all starting to come together.. thanks to you…:)

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You have smoothed the pathway with your efficiency

Amanda…May I take this opportunity to thank you for your help in these matters. Although I am a resilient person, it has not been easy, but you have smoothed the pathway with your efficiency…

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I would recommend you to anyone

Hi Marjory and Keira, I just want to thank you both for taking me through this terrible time in my life. I have learned a lot in the past 3 years with dealing with BTO and I would recommend you to anyone as you have been very fair and honest with all parties concerned.

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Forever I will be grateful…

Marjory, forever I will be grateful and thankful to you for all the hard work you did for me and my family. Thank you very much again and again. I am so very blessed in life that I found a lovely understanding person like you. Not many lawyers would say go and have a cup… Read more “Forever I will be grateful…”

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I came out of your offices feeling great!

Marjory, thank you for a really positive meeting on Friday. I feel things are a lot clearer in my head – I came out of your offices feeling great!

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I will definitely recommend you…

Hi Marjory, thanks again for being an absolute joy to work with during this unknown and nerve-wracking process. You made me feel calm and reassured throughout (not an easy task). I will definitely recommend you to anyone else looking for representation.

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Approachable and sensitive manner

Marjory, thank you very much for your very approachable and sensitive manner during our meetings.

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I would like to thank my exceptional Scottish team

My dear legal team! I have been writing this letter of thanks in my head since about two months ago, and didn’t know it would take a bit longer than expected to actually be able to express my deep gratitude to you ALL for winning this tough and enduring process for me……I would like to… Read more “I would like to thank my exceptional Scottish team”

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Their service and support has been excellent

After quite a complex case, I can say that their service and support has been excellent.

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Such a lovely welcoming manner

Beverley, just wanted to say thanks so much for your fertility law training session provided for the group last night! It was super helpful and everyone really appreciated it. You have such a lovely welcoming manner which I think really helped people feel comfortable to ask questions.

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I still get to see my kids 3 times a week

Just wanted to say a huge thank you for your help and representation today. It’s such a relief to hear that I still get to see my kids 3 times a week. Also last but by no means least can you pass on my profound gratitude to Counsel who was a star !!!!

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Help during this extremely difficult time

Debbie, I would just like to thank you for your help during this extremely difficult time. I really appreciate it.

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From our first meeting, I felt confident…

Hi Debbie, I wanted to take this opportunity to pass on my gratitude to you for getting me through this. From our first meeting, I felt confident and assured to be in your safe hands and that never changed during the last 18 months. Whilst it is a great relief to have this finished I… Read more “From our first meeting, I felt confident…”

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Efficient and smooth service

Debbie, could I take this opportunity to thank you for the efficient and smooth service you have provided, and particularly, in our first meeting when you listened to my concerns and really helped explain things and put my mind at ease.

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After all these years I’m finally free

Thank you so so much Amanda. Actually there’s no words to thank you. I feel great. After all these years I’m finally free. Thank you.

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Things have been finalised in about twelve weeks

Amanda, many thanks for seeing all this through for me. I cannot believe that after the best part of two and a half years of frustration (pre BTO), things have been finalised in about twelve weeks.

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Always appreciated being able to rely fully on you and the team

Amanda and Lesley, thank you to you both for all your help, now and during last year, and, as I said before, I have always appreciated being able to rely fully on you and the team at all times. Obviously, a very sad time for me but I am relieved that it is at an… Read more “Always appreciated being able to rely fully on you and the team”

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I certainly feel like a weight has been lifted off my shoulders

Marjory, I just wanted to say thanks very much for your help right throughout the case. Lately, the ad hoc support has been invaluable and given me the confidence to keep representing myself and not feel pushed into agreeing something I’m not comfortable with. I appreciate how difficult it must be to provide support when… Read more “I certainly feel like a weight has been lifted off my shoulders”

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Thank you for your professionalism and talent

Thanks Debbie, as always, for your professionalism and talent, it has been a pleasure.

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I am eternally grateful

I am in no doubt I have made the correct choice by having BTO Solicitors represent me in such a difficult time. I am under no illusion you and your team will continue to do the best for me in future. Many many thanks for today. I am eternally grateful.

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Splendid work Marjory

Splendid work Marjory, it has been a treat to use BTO and your services.

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Your advice has been incredibly helpful

Beverley thank you for everything you’ve done regarding my case and for your assistance in getting the many issues resolved and matters concluded. Your advice has been incredibly helpful and greatly appreciated. Should I require any further assistance, I will be in touch.

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Our anxieties were greatly alleviated

Lesley, thank you so much for all your help. It turned out to be a very uncomplicated matter in the end and probably not the most interesting for you. However our anxieties were greatly alleviated with your advice and work

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Guiding me through a difficult time

Lesley, I would like to take this opportunity to thank you for your professionalism. Guiding me through a difficult time, also your understanding and empathy as to my personal situation. I would not hesitate in recommending your services to others.

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Highly professional and excellent services

Debbie, I would like to express my sincere gratitude for the highly professional and excellent services I received from yourself and your team.

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I won’t hesitate to put them in touch with you

Looking back I wish my ex-wife and I would have gone down the collaborative divorce path but as you know she chose a very different way which ended up being most certainly a longer, more stressful and more expensive path for both of us. Should I ever hear of anyone whose marriage has reached that… Read more “I won’t hesitate to put them in touch with you”

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I left the offices empowered and liberated

Just wanted to say huge thank you to Lesley Gordon. I left the offices empowered and liberated. Not sure any psychologist would have done a better job! On top of her real job.

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Outstanding job…

Marjory… you are doing an outstanding job… Thanks again for your support and expertise in helping me navigate through this horrible situation. I really appreciate it.

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Great service

Beverley thank you so much for all your hard work and making things run as smoothly as possible. Great service.

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Excellent communications and support

Many thanks for your recent work related to my divorce…..I would particularly like to thank Amanda Richardson for her excellent communications and support.

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An Excellent Lawyer…

Beverley thanks for all your assistance with everything. It’s much appreciated and rest assured should I ever need an excellent lawyer in the future you will be the first to be called.

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We would not have managed this without you

Marjory, I think we can all honestly say that we would not have managed this without you, truly you have been an absolute star and we are all very thankful.

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We are award winning family and divorce lawyers based in Edinburgh and Glasgow and covering the whole of Scotland, including cross border issues, specialising in divorce and all aspects of child and family law. Learn More

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