10:43, December 16 222 0 theguardian.com

2019-12-16 10:43:04
NHS 'should not pay' for US surrogacy after cancer misdiagnosis

The NHS should not have to pay for patients to have surrogate children through commercial agreements in the US, the supreme court has been told in a controversial medical compensation case.

Whittington hospital NHS trust in north London has admitted negligently failing to detect signs of cervical cancer for more than four years. That oversight led to the woman, identified only as XX, developing highly invasive malignancy, which required chemo-radiotherapy treatment and left her infertile at the age of 29.

She was awarded £580,000 in damages but the high court refused to make further payments to cover the costs of four surrogacies in California because such commercial arrangements are illegal in the UK.

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

Her lawyers have argued that she should be granted the costs of surrogacy in California, where the practice is legal and binding, saying that “in 2019, the civil courts should no longer have any role in censuring a woman’s reproductive choice”.

Last December, the court of appeal overturned the high court ruling declaring that the patient was entitled to an additional £560,000 to cover the cost of having children with commercial surrogates in the US.

At the supreme court on Monday, the Whittington trust appealed against that decision, maintaining that commercial surrogacy is “contrary to public policy”. The case is the last that Lady Hale, the president of the supreme court, will hear before her retirement next month.

Opening the trust’s appeal, Lord Faulks QC said: “This is a very sad case.” XX should not be entitled to “the cost of obtaining a child through surrogacy, whether that should be by way of altruistic or commercial surrogacy in the UK or abroad.

“Whatever the view the court takes about altruistic surrogacy, there should be no award of damages for commercial surrogacy since an award would be contrary to public policy.”

Faulks said there had not been a significant move towards commercial surrogacy in the UK and that the parliamentary process [as opposed to the courts] was much better suited to any change in the law.

In written submissions, XX’s barrister, Christopher Johnston QC, said both his client and anyone involved in the proposed commercial surrogacies would not be transgressing any laws in the UK or California.

There had been a significant shift in favour of surrogacy in the approach of parliament, government and society in the past 20 years, he said, and it was almost certain the family courts would facilitate any such surrogacy by granting an order confirming that XX and her partner were the surrogate children’s parents.

In those circumstances, Johnston added, “consistency in the application of the law strongly supports rejecting this attempt to censure Ms XX’s reproductive choices and bar her from the full compensation to which she would otherwise be entitled”.

She had very limited opportunities to have a baby from her own eggs, with each attempt facing “a significant risk of failure”, he added.

Johnston also said that “in the UK, where surrogacy arrangements are unenforceable, there is the additional risk that the surrogate mother would keep Ms XX’s baby”.

The supreme court is hearing the case on Monday and Tuesday. It is is expected to reserve judgment until the new year.