Supreme Court to decide if NHS should pay for woman’s surrogacy abroad in historic ruling

Britain’s highest court will hear the case of a woman who is asking the NHS to pay for her to have surrogates birth her child in the US after the health service's failure to spot her cervical cancer left her infertile.

Whittington Hospital NHS Trust admitted it had negligently failed to spot signs of the patient’s cancer over a course of more than four years.

Known as XX for legal reasons, the woman was forced to undergo chemo-radiotherapy, leaving her infertile at the age of 29.

The High Court initially declined to pay out compensation for the woman to undertake four commercial surrogacies in California as the practice is illegal in the UK – however the court of appeal said the woman was entitled to as much as £560,000 in additional compensation to cover the fees.

On Monday, a panel of five Supreme Court justices in London will hear the NHS trust's appeal against the award to the now-36-year-old – whose lawyers said the ruling was the first time the costs of surrogacy in the US had been awarded in a claim for clinical negligence.

In a statement ahead of the hearing, XX's solicitor Anne Kavanagh said: "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."

Additional reporting by PA.

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