Last week the Supreme Court acknowledged that it is possible to award compensation as part of a clinical negligence claim to cover the cost of commercial surrogacy abroad for women who have been left infertile due to failures in care (The Guardian).

In a landmark case, a woman who suffered appalling cervical screening errors, which left her unable to bear her own children, won her claim for compensation to pay for surrogacy in California. Commercial surrogacy is legal and well-regulated in California providing all parties with greater protection than is offered by the system in the UK. Surrogates are paid compensation for the risks they take in carrying and delivering a couple’s baby and the impact on their lives in the American state.

In the UK surrogacy is legal but only ‘expenses’ may be paid and it is also unregulated so even if a written agreement is signed by both parties it is not legally enforceable. This can make it a risky option with the potential for women who have already suffered the heartbreak of infertility, in some cases due to horrendous medical failures, to lose their longed-for child.

I have previously represented a woman who needed to claim for surrogacy costs after having an emergency hysterectomy due to negligent use of a drug to speed up labour, which caused her uterus to tear. We argued that the NHS trust responsible for the appalling failures should cover the cost of two surrogacy arrangements and were successful in recovering a significant contribution to this. I am aware that the woman and her partner went on to have at least one healthy child from this arrangement. I have colleagues who are also helping women to claim UK surrogacy costs from the NHS due to similar reasons.

There are many other women, who have had the most fundamental of human rights taken away from them, who may be too frightened to enter into a UK surrogacy arrangement due to the lack of regulation. We hope this judgment from the Supreme Court will open surrogacy overseas up to more of these women to help them to realise their dream of having their own family. We also hope it will contribute to opening up the debate on regulation of surrogacy arrangements in the UK.