07 August 2006
ByAppeared in BioNews 370
New Zealand's Accident Compensation Corporation (ACC) has ruled that a woman who was left without a womb after going into hospital to have a baby is entitled to compensation to cover the cost of using a surrogate to carry a child for her. The ACC will pay for the costs of IVF treatment and any related costs, but any embryos created will need to be carried by another woman. The woman, known to be from the North Island of New Zealand, but who has chosen to remain anonymous, had to have an emergency hysterectomy after a 'medical mishap' during the Caesarean birth of her first child, leaving her unable to have further children naturally. The ACC ruled that paying for the IVF treatment, even though any resulting pregnancy will be undertaken by another woman, can be regarded as part of the woman's rehabilitation from the 'treatment injury' she suffered.
Surrogacy in New Zealand is governed by The Human Assisted Reproductive Technology Act 2004 - surrogacy itself is not considered to be illegal, but surrogacy agreements are unenforceable. The Act also prohibits commercial surrogacy and states that only 'necessary expenses' may be paid to a woman acting as surrogate. This means that there can be no compensation payment relating to the cost of the surrogacy arrangement itself, only for any expenses - such as medical bills or transport costs - that arise out of it.
Some people have criticised the decision, saying that it creates a precedent. Don Rennie, convenor of the Law Society's Accident Compensation Committee says that 'lawyers will be exploiting it as far as they can because it seems to me that it opens up the possibility of receiving compensation for lost opportunity'. He added that such claims could extend beyond the realm of infertility - for example to a promising student of medicine or law, who suffered a brain injury and who may have had an otherwise successful career. But Gerard McGreevy, chief operating officer of the ACC says that offering compensation for the injury falls within the bounds of the scheme - a 'no-fault' compensation scheme. He said that the ACC made its decision based on the woman's right to rehabilitation, and said that, in the past, the ACC has paid for IVF treatment for women with fertility problems caused by accidents - this situation is just an extension of that principle, he said. But Keith Reid, an Auckland barrister, cited a past case where a man paralysed in an accident, who wanted to become a father, had been compensated by the ACC for the cost of the sperm retrieval but not for the cost of implantation of the sperm into his wife - this, he said, showed that the new case was an extension of previous principles.
A ruling in a similar case in the UK High Court in 2000 said that a woman, Patricia Briody, was not entitled to receive damages to pay for a surrogate child. Mrs Briody was left infertile by the clinical negligence of a St Helens and Knowsley Health Authority hospital 26 years prior to the case, when two pregnancies ended in stillborn children and an emergency hysterectomy. Miss Briody had claimed damages on the basis of the 'disappointment, distress and lack of fulfilment in her life' and for the cost of implanting her own fertilised eggs in a surrogate mother in the US, the only way she believed she would be able to have a child of her own. For this she was claiming £400,000 compensation. However, Mrs Justice Ebsworth awarded Miss Briody £80,000 damages for the pain and suffering caused by the negligence, but rejected her surrogacy claim on the basis that her chances of motherhood were statistically too low. Later, following an appeal, the Court of Appeal affirmed the original ruling, saying that expenditure on surrogacy was 'unreasonable' and should not be paid by the health authority. The three Appeal Court judges recognised Ms Briody's desire to have a child, but said that funding a surrogacy arrangement would be a 'step too far'. They did not, however, rule out the costs of surrogacy ever being awarded, dismissing the health authority's claim that to do so would be against public policy.
Dr Kirsty Horsey is Contributing Editor at BioNews. She is coeditor of Human Fertilisation and Embryology: Reproducing Regulation (buy this book from Amazon UK) and coauthor of Tort Law (buy this book from Amazon UK) and Skills For Law Students (buy this book from Amazon UK).