Thursday, December 20, 2018

An English court awards a woman the costs of surrogacy in California (although commercial surrogacy is illegal in the UK)

Here's an unusual story about surrogacy, from the UK, with a legal opinion confirming that paying a surrogate is illegal in Britain, but that British citizens can legally pay a surrogate in California:

Woman left infertile after NHS failed to detect cancer for four years awarded £580k to cover surrogacy costs  by  Telegraph Reporters, 19 DECEMBER 2018

"A young woman left infertile because her cervical cancer was not spotted for more than four years has been awarded the costs of having surrogate children in America by the Court of Appeal.
"The High Court awarded XX a total of £580,000 in damages last year, including the costs of fertility treatment, cryopreserving her eggs and having children by surrogacy in the UK.

"However, XX's claim for the costs of four surrogacies in California, where commercial surrogacy is legal and binding, was dismissed as the court found that commercial surrogacy was still illegal in the UK and therefore contrary to public policy.

"But, giving judgment in London on Wednesday, senior judges allowed her appeal, meaning XX will now receive as much as an additional £560,000 to cover the cost of having children with commercial surrogates in the US.

"Her solicitors Irwin Mitchell say the ruling is the first time the costs of surrogacy in the USA have been awarded in a claim for clinical negligence.
"Finding that the ban on commercial surrogacy was "expressly limited to acts done in the UK", the judge said that "there seems to me to be an incoherence in depriving her of her claim at the outset when she personally proposes no wrongdoing, either under Californian law or under our own law".
Update: here's an article from The Conversation that attempts to shed some light on the finer points of British surrogacy law.

"Under the Surrogacy Arrangements Act (1985), it is not illegal for a couple to pay a surrogate to carry a baby for them and it is not illegal for the mother to accept payment. However, it is illegal for any other person to take or offer money in relation to surrogate motherhood.
Commercial surrogacy agencies are therefore illegal, as are the activities of individual commercial surrogacy agents. And such commercial deals will not be upheld by the courts. By the terms of the Surrogacy Arrangements Act and section 36(1) of the Human Fertilisation and Embryology Act (1990), no surrogacy arrangement of any sort is enforceable in law."

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