Whittington Hospital NHS Trust v XX [2020] UKSC 14
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Whittington Hospital NHS Trust v XX [2020] UKSC 14 The Cost of International Commercial Surrogacy Recoverable as Damages: A Step in the Right Direction? Neera Bhatia
Received: 5 August 2020 / Accepted: 16 November 2020 / Published online: 1 December 2020 # Journal of Bioethical Inquiry Pty Ltd. 2020
Keywords Child . Commercial surrogacy . Damages . Family . Infertility . Medical law . Negligence . Torts
In a landmark ruling the U.K. Supreme Court determined that the costs of overseas commercial surrogacy arrangements were recoverable as damages in torts.
Case History The claimant (XX) was twenty-nine years of age at the time that the negligence was found to have occurred. The defendant, NHS hospital trust, was found to have rendered the claimant infertile resulting from a succession of failures to detect and diagnose cervical cancer commencing in 2008. The claimant underwent her first smear test that was wrongly reported as negative when it actually showed a change of appearance in the cells. The claimant had a second smear test several years later in February 2012 that showed invasive carcinoma, which again had wrongly reported results. In September 2012, she had a repeat smear test that again was wrongly reported when there was evidence of features suggestive of invasive carcinoma. The claimant also underwent N. Bhatia (*) School of Law, Deakin University, Burwood Highway, Victoria 3125, Australia e-mail: [email protected]
cervical biopsies in September and October 2012; they too were wrongly reported as showing pre-malignant changes when they showed invasive carcinoma. The defendant admitted liability for the 2008 and 2012 smear tests and biopsies. Further, the NHS trust admitted that if the appropriate action had been taken in 2008, the claimant would have had a 95 per cent chance of a complete cure and would not have developed cervical cancer. Eventually, in June 2013, the claimant was informed that she had cervical cancer and was referred to another hospital. After an assessment of her condition, it was determined that the cancer was too far advanced to proceed with surgery that would conserve her ability to bear a child. Further, the claimant required chemoradiotherapy treatment that would also result in her being unable to bear a child (Whittington Hospital NHS Trust v XX [2020] UKSC 14 at 3). Importantly, the claimant and her partner wanted to have four children. Both the claimant and her partner came from large families, and they too wished to have a large family of their own. With this in mind, before undergoing surgery and chemoradiotherapy, the claimant successfully had an egg collection that resulted in eight mature eggs being frozen and stored. Expert evidence indicated that it was probable that the claimant could have two children using her eggs and her partner’s sperm. However, to fulfil their wishes of having a further two children would require the use of donor eggs. The claimant and her partner decided that to do so they would proceed with a commercial surrogacy
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