By Estelle Shirbon
LONDON (Reuters) – The case of a woman who wants the London hospital responsible for her infertility to pay for four surrogate pregnancies in the United States reached Britain’s Supreme Court on Monday.
The Whittington Hospital has admitted negligence after failing for four years to detect signs of cervical cancer in the woman, who has not been named for legal reasons.
But it says it should not have to pay her U.S. surrogacy fees, a bill that could be as high as 558,000 pounds ($716,000) according to the woman’s lawyers.
The case will be closely watched by the medical profession as it could set a precedent for the type and extent of damages that should be paid to victims of medical negligence.
Commercial surrogacy, in which a woman is paid to bear a child on behalf of someone else, is legal in the United States.
In Britain, surrogacies are lawful only when they are agreed for altruistic reasons and surrogate mothers can be paid reasonable expenses but no other compensation.
The woman at the center of the case, who comes from a large family and wants four children of her own, underwent a series of smear tests and biopsies at the Whittington when she was aged between 25 and 29 years old. She is now 35.
Due to defective analysis of the results, her cancer was not diagnosed until it was too late for her to have fertility-saving surgery. Instead, she underwent chemo-radiotherapy treatment that led to complete infertility.
The woman eventually required surgery for her life-threatening cancer, but her desire to have children was so strong that she delayed the surgery so she could have 12 of her eggs harvested and cryopreserved, or frozen.
She now wants to have four children through a surrogate mother in California, where commercial surrogacy agreements are binding, meaning that the intending parents can have their legal status as parents confirmed before the birth of a child.
Under English law, the surrogate is the legal mother and can refuse to give the child to the intending parents.
At issue in the Supreme Court are two issues: whether the hospital should have to pay for surrogacies in the U.S., and whether it should have to pay for any pregnancy requiring donor eggs, as opposed to the woman’s own eggs.
Fertility experts say the woman is likely to achieve no more than two live births from her 12 frozen eggs, meaning that she would require donor eggs to grow her family according to her wishes.
A High Court judge ruled in 2017 that the hospital should pay for two surrogacies in Britain, using the woman’s own eggs, on the basis that the use of donor eggs would not be restorative of the loss of her ability to have children of her own.
The woman appealed against the ruling and won in December 2018, prompting the hospital to take the case to the Supreme Court. Five justices will hear legal arguments on Monday and Tuesday and give their judgment at a later date.
($1 = 0.7794 pounds)
(Reporting by Estelle Shirbon; editing by Philippa Fletcher)