Solicitor stakes claim to first ever settlement including surrogacy costs

Paul Rumley, partner at Withy King in Swindon, has claimed to have achieved the first ever settlement including damages for some of his client's surrogacy costs. The claim has been strongly denied by the NHS trust involved.

Rumley said his client, Donna Wilson, had arranged for a surrogate after her womb was damaged in the wake of a hospital operation.

'We did not say the hospital was negligent in causing the injury, but it was negligent in failing to notice it and so not telling her of the risks of becoming pregnant again so soon afterwards,' Rumley said.

He said that Wilson had the initial operation after a miscarriage. Soon after her return from hospital, she became pregnant again and suffered a further miscarriage, rupturing her womb.

After this, Rumley said Wilson underwent IVF and arranged for a surrogate mother. The surrogate gave birth to a twin boy and girl in 2007. Rumley said Wilson received £50,000 in an out-of-court settlement, including a partial award for surrogacy costs.

'We settled the case globally, but the way things turned out the amount they paid had to include surrogacy or we would not have got as much money as we did,' Rumley said.

A spokesman for the Great Western Hospitals NHS Foundation Trust said: 'In short, Donna Wilson accepted a part 36 offer to settle her claim for £50,000. This was a general award and made no specific allowance for surrogacy costs.

'Following your enquiry, our solicitors have now written to the claimant's solicitors to reiterate that the award was made on a general basis and made no allowance for surrogacy. Therefore I am afraid it would be inaccurate to report that the costs of surrogacy were recovered in this case.'

But Rumley said: 'Actions speak louder than words. As far as I'm concerned the settlement had to include some element of surrogacy. It is an important step forward and a natural progression from the Court of Appeal decision in Briody.'

Rumley distinguished the facts of his case from the situation in the leading case of Briody v St Helens & Knowsley Area Health Authority [2001] EWCA Civ 1010, where the surrogacy had not yet taken place.

Giving judgment in Briody, Lady Justice Hale said that there were no indications that 'surrogacy as such' was contrary to public policy.

'They tend to indicate that the issue is a difficult one, upon which opinions are divided, so that it would be wise to tread with caution,' Hale LJ said.

'This is borne out in the official publications which have considered the matter. If there is a trend, it is towards acceptance and regulation as a last resort rather than towards prohibition.'

Lady Justice Hale said while there was general agreement that commercial surrogacy agencies and advertising should be banned, and that surrogacy for convenience or social rather than medical reasons was unacceptable, there was 'little discernible consensus' on anything else.

Since Margaret Briody was 47, Lady Hale ruled that the chances of a successful surrogacy using her eggs were so 'slim' that it would be unreasonable to expect the defendant to pay the expenses.

Rejecting Briody's appeal, she left open the possibility that courts could award compensation for surrogacy where the woman involved was younger and there were reasonable chances of success.