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UK woman wins claim for NHS to pay US surrogacy costs

6 April 2020
Appeared in BioNews 1042

A UK woman has won her case in the UK Supreme Court against an NHS hospital for the cost of surrogacy in California.

The woman, known as XX in court documents, is unable to have her own children after signs of cervical cancer were repeatedly missed. Because of the delay, the woman's cancer progressed and she had to have surgery, radiotherapy and chemotherapy, which left her infertile. 

The UK courts had previously refused to allow the cost of commercial surrogacy to be included in payments for damages, because commercial surrogacy is not permitted under UK law. However, the former president of the Supreme Court, Lady Hale, who gave the majority decision, said:

'It is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.... The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here.' 

XX and her partner are both from large families and would like to have at least four children. She was able to freeze some of her eggs before her cancer treatment but acknowledges that she may also need donor eggs to achieve the family size she desires. 

Commercial surrogacy is legal in California, and the intended parents can obtain a court order before birth confirming that they are the child's legal parents. Lady Hale contrasted this with the situation in the UK, which she described as 'fragmented and in some ways obscure'. 

Surrogacy arrangements in the UK are not legally binding and cannot be enforced. The person who gives birth is always the child's legal mother, and this can only be changed by a court issuing a parental order after the birth. 

'In the circumstances, it is scarcely surprising that the claimant's clear preference is for a commercial surrogacy arrangement in California,' said Lady Hale.

The difficulties around surrogacy in the UK have been recognised and the Law Commissions of Scotland, and England and Wales are working on reform proposals. 

Supreme Court awards damages to fund US surrogacy costs
The Law Society Gazette |  2 April 2020
UK woman wins claim for NHS to pay US surrogacy costs
Guardian |  1 April 2020
XX v Whittington Hospital NHS Trust UKSC 2019/0013
Bailii |  1 April 2020
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