Family Law

Court Awards Damages To Go Do Something Illegal -- To Pursue Compensated Surrogacy In A Country Where It Is Permitted

Even countries that struggle with aspects of surrogacy recognize its legitimacy and need.

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She didn’t really make $500K.

A court in England awarded a woman damages so that she could undergo surrogacy in the United States up to four times! The 35-year-old British woman, known only as “XX” in court filings in order to preserve her anonymity — possibly because she works for MI-5, we’ll never know — permanently lost her ability to conceive after the National Health Services (NHS) failed to detect her early signs of cancer. What was a “benign, treatable pre-cancerous condition” developed into malignant cancer, which spread in her body and caused permanent damage to her uterus and ovaries, among other organs.

Awarding Damages to Do Something You Couldn’t Do in England

It’s been a long road, and the battle is not over for XX. While the trial court in England — paradoxically called the “High Court” — awarded XX substantial damages, it declined to award her compensation to be used for surrogacy in the United States. The problem, of course, is that compensated surrogacy is illegal in the UK. So while uncompensated surrogacy is permitted, it’s a lot harder to find someone who wants to gestationally carry a child for another person or couple for free. Not only that, but in England, an uncompensated surrogate is allowed to change her mind after the birth, and can keep the baby. Even if the baby was conceived using your eggs or sperm, and is not at all related to the surrogate. Blimey!

So the only way for XX to be certain that she could use her genetic material — she was able to retrieve 12 eggs prior to treatment — is to go to a jurisdiction like the United States, and specifically a state like California. There, she can legally find and compensate a surrogate. And her legal relationship with her child will be protected. The surrogate can’t just change her mind and keep the baby. Some certainly have tried. But, in California at least, they have always failed.

XX appealed the High Court’s ruling to the Court of Appeals, and the Court of Appeals sided with her. It awarded her significant additional damages specifically to be able to go through four surrogacies in the United States. It is a bit mind-boggling that a court can award damages to a wronged person to specifically go to another country to do something that would be illegal in the first country. Sort of like if a federal court awarded damages so that a plaintiff could go to Amsterdam to consume medical marijuana (like before marijuana was legal in a ton of U,S. states). However, there is really no other way to make XX whole. This is the one way to give her the chance at a family that she could have had if the NHS had not committed such errors.

Unsurprisingly, the NHS has appealed the decision to the Supreme Court. While the medical provider with the NHS has apologized, and admitted that it did not diagnose XX’s cancer soon enough, its attorneys are arguing that there is too much uncertainty as to the law related to surrogacy. And that the only way to resolve that uncertainty is for the Supreme Court to weigh in.

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Not The First Time.

If the award to XX stands, it won’t have been the first time that a court in one country that restricts surrogacy will have awarded damages specifically for use with surrogacy in the United States. I wrote about this Canadian case a year and a half ago. A woman was severely injured in a head-on collision, losing her ability to carry a child along with her other severe injuries. Like the UK, Canada does not permit compensated surrogacy (at least for now), and the ability for intended parents to be the guaranteed parents of their biologically related, surrogate-born child is legally fraught. So the court awarded the crash victim funds in order to pursue surrogacy in the United States to still have the chance of a biological child.

While the usual questions about the ethical and moral nature of surrogacy will continue to churn, it is telling that even countries that struggle with aspects of surrogacy recognize its legitimacy and need, and knowingly send their citizens to surrogacy-friendly jurisdictions to fulfill their hopes of a family.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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