London Woman Seeking Californian Agreement Which Will Provide More Legal Security

A young woman left infertile when her cervical cancer was only spotted more than four years after her initial smear tests, will appear at the Supreme Court on Monday, 16 December, as she seeks confirmation that she can access surrogacy services in the USA. 

The 36-year-old from London, who wished to remain anonymous and is known in the case as XX, was diagnosed with cervical cancer in June 2013 but she first had a smear test in December 2008 which was incorrectly reported. There were also several other missed opportunities to diagnose her cancer between December 2008 and June 2013.

She instructed specialist medical negligence lawyers at Irwin Mitchell to investigate the care she received from the Whittington Hospital NHS Trust, which admitted that the care had been negligent.   

The Court of Appeal ruled unanimously that she was entitled to compensation to cover the costs of accessing surrogacy services in the USA where there is a secure legal framework in place for surrogacy. The NHS is appealing that decision.

A Serious Untoward Incident Report into why her all of her smear and biopsy specimens had been incorrectly reported found that if her original smear test had been properly reported by the Trust, she could have been treated with a much simpler procedure before she developed invasive cancer, with no impact on her fertility or lifestyle.

When she was finally diagnosed in 2013 she was advised that chemo-radiotherapy was essential and so she underwent egg harvesting before undergoing a course of treatment.

Her cancer prognosis is good but she has been rendered infertile and will have to rely on surrogacy if she is to have a family of her own. She has also suffered damage to her bladder and bowel as a result of the radiotherapy treatment and suffers on-going daily symptoms as a result.

In September 2017, Sir Robert Nelson, sitting as a Judge in the High Court, awarded her a settlement for her injuries. This included the cost of undergoing fertility treatment and surrogacy costs in the UK for two children. 

However, as a result of the experiences which rendered her infertile, the woman has always said that she wants to pursue surrogacy in California where there is a secure legal framework for surrogacy. She has been rendered infertile through no fault of her own and does not see why she should have to rely on the charity of strangers now in order to become a mother.

Expert Opinion

“This is a tragic case where due to no fault of her own, my client has suffered grievous injuries including infertility at a young age. It is more than a decade since her first smear test was wrongly reported by the Whittington Hospital.

“Her only hope of becoming a mother is by surrogacy, using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs. The Court of Appeal granted her the costs of that treatment in California where she will have the security of a legally enforceable agreement to protect her as well as the surrogate and the baby in the event of any dispute, something which would not be available to her under English law.

“Expert psychological evidence supports our client’s case that she will struggle to cope with the uncertainty of the UK system particularly given that none of this was her choice. We now ask the Supreme Court to confirm that the Court of Appeal’s judgment was correct in law so that she can begin to move on with her life once and for all.” Anne Kavanagh - Partner

The hearing will be heard at the Supreme Court on 16 and 17 December 2019.

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