With commercial surrogacy prohibited in the UK, a recent Court decision has provided some clarity on this issue
A recent Court decision has clarified the law surrounding claiming the cost of surrogacy treatment in the UK.
In the case of XX v Whittington Hospital NHS Trust the claimant had become infertile due to the negligence of Whittington Hospital NHS Trust. As a result, she could only have a child through surrogacy. The Health Authority argued that the claimant was not entitled to any costs relating to the surrogacy. However, the claimant argued that she should be entitled to claim the costs, providing that the surrogacy took place outside of the UK. Commercial surrogacy is illegal in the UK. She proceeded with the surrogacy in America, where commercial surrogacy is allowed. She then included the cost of the surrogacy as part of her claim against the NHS Trust.
The Court agreed that she was entitled to recover these costs.
What does the law say about surrogacy in the UK?
Provided that the surrogate mother is not paid, then it is considered legal. If the surrogacy is carried out for money, then you are not able to claim the costs. However, the Courts do allow reasonable expenses incurred by the surrogate mother to be claimed. This would usually relate to the costs of using a fertility clinic.
Is surrogacy a crime in the UK?
Which countries do allow commercial surgery?
Most EU countries do not allow you to recover the cost of surrogacy. Russia, and a very limited amount of Eastern European countries, along with America do allow commercial surrogacy.
Parental Rights in surrogacy in Scotland
In surrogacy, the surrogate mother is always treated as the legal mother of the child which is born regardless of what may have been agreed with the “intended parents”. The intended parents though can acquire parental rights in respect of the child either by adoption or by court order.
How much does surrogacy cost?
Although there is no set amount in the UK, the courts generally allow surrogacy expenses of between £12,000 and £15,000. The average cost of surrogacy in America ranges from about £90,000 to £130,000.
If you have any queries relating to the issues regarding infertility due to medical negligence, please contact us to discuss the matter on 0800 988 8082 or complete our online enquiry form and a member of our specialist team will get back to you right away.