Surrogacy costs recovered in clinical negligence case

Eddie Jones, Head of the Clinical Negligence Department at JMW Solicitors has recently settled a case in which surrogacy costs were paid by the NHS as part of the settlement.

The claim relates to the treatment received by our client, Mrs X, at the birth of her first child which led to an emergency hysterectomy.

Mrs X became pregnant in 2006 and was due to give birth in the following January. The pregnancy was uneventful and she went into labour as expected.

However, as the second stage of labour was prolonged a doctor decided to start Syntocinon (a drug used to help with the progress of labour). Guidelines issued by the National Institute of Clinical Excellence (NICE) indicate that in such a situation Syntocinon should not be started and in fact the correct approach would have been either to have a caesarean section or forceps delivery at that point or soon after.

The drug infusion was increased steadily and despite an increase in contractions Mrs X did not achieve deliver naturally. The doctors did an emergency section but encountered difficulty in delivering the baby’s head from the pelvis. After the baby was born the doctors noticed a tear in her uterus. Attempts made to repair the tear were unsuccessful and Mrs X underwent an emergency hysterectomy with preservation of ovaries.

As our client had planned to have a large family, she claimed for two host surrogacy arrangements at a total cost of £81,000.00. The hospital trust denied that surrogacy costs were recoverable in law.

The case proceeded to a settlement meeting. By that time Mrs X and her husband had identified a surrogate and entered into an Agreement. During the course of the settlement meeting the Hospital’s legal representatives indicated that it would be prepared to offer £77,000.00 towards the cost of two surrogacies. The final settlement of £250,000.00 plus costs was confirmed.

Although there is no case law supporting the recoverability of surrogacy costs, the hospital did not pursue that argument. The hospital was faced with a Claimant who was a good candidate for surrogacy, and had embarked upon the process. The hospital conceded surrogacy costs in negotiations so as to avoid any precedent being set at trial. As far as we know this is the first case of its kind in the UK where compensation has been obtained for two surrogacy arrangements.

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