Whittington Hospital in Supreme Court fight over damages for woman’s US surrogacy plan after missing cancer signs for 4 years

Whittington Hospital. Picture: Steve Parsons/PA Archive

Whittington Hospital. Picture: Steve Parsons/PA Archive - Credit: PA Archive/PA Images

Whittington Hospital bosses have argued the NHS should not have to pay for a woman to have surrogate children in America after it missed signs of cervical cancer for four years, the Supreme Court has heard.

A woman - known only as XX for legal reasons - was left infertile at the age of 29 after requiring chemo-radiotherapy to treat her "highly invasive" cancer.

The trust has admitted negligently failing to detect the signs, but its lawyers have argued that in a landmark ruling last December, the Court of Appeal was wrong to decide XX was entitled to an £560,000 to cover the cost of commercial surrogacy in California.

This was in addition to a previously awarded £580,000 in damages awarded for the medical errors. The Court of Appeal increased this after agreeing with her lawyers'# argument that "in 2019, the civil courts should no longer have any role in censuring a woman's reproductive choice".

But Whittington Health's barrister Lord Faulks QC told the Supreme Court on Monday December 16: "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."

He opened by saying it was "a very sad case" but XX should not be entitled to "the cost of obtaining a child through surrogacy".

Lord Faulks said there had not been a "significant move towards commercial surrogacy" in the UK, and that "the parliamentary process is much better suited" to any change in the law in this area of policy.

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

He said there had been a "significant shift in favour of surrogacy in the approach of Parliament, Government and society" in the last 20 years, and that 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.

The Supreme Court is expected to rule on the case in the new year.