Claiming for the costs of a surrogacy arrangement: A new head of loss?

They say that nothing can prepare you for the sheer overwhelming experience of what it means to be a parent. But how would you feel if that opportunity was taken away from you because of the negligent action of someone else? In the recent case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), XX received £74,000 for the cost of two surrogacies in the UK. This was because XX was unable to bear children as a direct consequence of her delayed diagnosis of cervical cancer.

In English law commercial surrogacy arrangements are viewed as contrary to public policy and are therefore illegal. You can only enter into a legal surrogacy arrangement in the UK where there is no intention to make a profit; although 'reasonable expenses' are recoverable. Furthermore, in the UK the surrogate mother choses the intended parent, rather than the other way round (as in California for example). Finally, if a legal surrogacy arrangement is carried out, then the surrogate mother is the legal mother of the child. Intended parents must, therefore, apply the courts in the UK for a parental order after the birth.

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