On 1 April 2020, a landmark judgement in the case of XXX v Whittington Hospital NHS Trust (2020), allowed recovery of the costs of foreign commercial surrogacy expenses where the injured person (the claimant) was no longer able to have her own child due to the defendant’s negligence.
In practice, this means that, it is now possible for a claimant to seek compensation from a defendant for the costs incurred by foreign commercial surrogacy where:
- the proposed programme of treatment is reasonable
- it is reasonable for the claimant to undergo foreign, commercial surrogacy treatment rather than in the UK
- the costs incurred are reasonable
Sarah Harper, legal director, cautions that an evidential issue has become apparent which means such claims, while now possible, are by no means straightforward.
Sarah has been instructed on behalf of a young lady, who, following alleged negligent treatment has been left infertile. Central to the recovery of damages in this case is financial compensation for the costs our client and her partner will incur in undergoing commercial surrogacy in the USA. However, the costs for commercial surrogacy in the USA are bespoke.
In the United States, each clinic/practice can charge whatever fees they propose: there is no fixed, agreed national schedule of costs. Ultimately, this is the trade-off for the certainty this contract-driven arrangement provides. In addition, the costs are not only bespoke to the client, but also to the surrogate used.
Moreover, each client will enter the clinic at a different level of preparedness. Some may already have eggs frozen; some may only want one child; some may want many more. Some may require more invasive egg harvesting procedures compared to others.
As such, it has proven difficult in practice to ascertain how much foreign commercial surrogacy will cost the claimant. Furthermore, a lot of these costs are not made available until the commercial surrogacy agreement is entered into. This is not something many people can afford until they receive their damages award.
“It has become apparent that in such cases, it is crucial to amass as much evidence as possible to demonstrate the range of compensation. This means speaking to prospective clinics where the claimant plans to undergo commercial surrogacy and establishing early on what treatment the claimant will need. This will enable us to provide a comprehensive breakdown of the costs claimed in commercial surrogacy cases and ensure that the claim is not under settled and the claimant is denied the opportunity for a full and just recovery.”