Q&A - Hospital blunder left me unable to give birth. Can I claim compensation to pay foreign surrogacy costs?

Q:    I was given a shock diagnosis of cervical cancer at the age of 28 and had a hysterectomy. Before surgery I had my eggs frozen as I had no children but had always wanted a large family. After recovering from the surgery, I began to question what had happened, as my cervical smears had always been fine. I made a complaint and after an investigation the hospital accepted errors had been made and my tests were wrongly reported. If appropriate action had been taken, there was apparently a 95% chance of a complete cure.

I am desperate to have my own biological children using my own eggs and want to engage the services of a surrogate. It seems this is easier to do abroad but it can be very expensive. If I made a claim against the hospital, could I recover compensation to pay for foreign surrogacy costs?

A:     UK law on surrogacy is complex and fragmented. The surrogacy arrangement is unenforceable, and the surrogate mother is always the child’s ‘legal parent’, unless and until a Court Order is made. Also, making surrogacy arrangements on a commercial basis is banned.

Due to these difficulties, surrogacy arrangements are often made abroad. In California for instance, the system is well-established, and the intended parents can obtain a pre-birth Order confirming their legal status. And a landmark UK Supreme Court ruling in 2020 held that costs of similar foreign commercial surrogacy arrangements can be claimed as part of a clinical negligence claim.

Ultimately, the object of compensation is to put the injured party, as far as possible, back in the position they would have been in had the error not occurred. For many women, being able to give birth to and rear children is a vital part of life and their identity. In light of the above, you should seek legal advice from a local specialist lawyer as soon as possible.

Article 26/07/2021

This question has been answered by Claire Parfitt, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  In accordance with government guidelines, most of our lawyers are currently working remotely which means you may not now receive a response as promptly as you may expect. Please kindly bear with us and we will respond as soon as we are able.

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Claire Parfitt

Claire Parfitt

Senior Solicitor

Senior Solicitor within our Civil Litigation team in Wrexham and Oswestry