Hypothetical by Manny Wood published in the Coffs Coast Advocate on 16 May 2020.
Between 2008 to 2012, Jane underwent several pap smears and cervical biopsies which were wrongly reported by her hospital. By the time the errors were detected in 2013, Jane was diagnosed with cervical cancer.
Unfortunately, the cancer had advanced beyond the scope of surgical intervention and left Jane with one option; to undergo chemotherapy and endure the associated side effects, including infertility. Determined to have children, Jane had eight of her eggs cryo-preserved and decided to pursue a commercial surrogacy arrangement in California, using two of her own eggs and two donor eggs.
Jane commenced negligence proceedings in the Supreme Court against the hospital, alleging that correct reporting would not have resulted in her becoming infertile. She sought compensation, which included the cost of surrogacy arrangements.
The Court accepted the hospital’s argument that Jane’s claim for commercial surrogacy in a jurisdiction outside Australia was contrary to public policy and therefore not compensable. The Court also highlighted that donor-egg surrogacy would not restore Jane’s fertility and therefore failed to achieve the very purpose of compensation, which is to restore an individual to their pre-injury position.
On appeal, the Court of Appeal held that Jane’s recourse to surrogacy using her own eggs would likely result in at least one live birth. Therefore, it had the probability of restoring her ambition to raise a family and therefore fulfilling the purpose of compensation. Further, the Court held that the cost of overseas commercial surrogacy arrangements should be compensated as it did not offend public policy, so long as everyone’s interests, including those of the child, were safeguarded.
Ultimately, the hospital was ordered to pay Jane substantial compensation which included the cost of commercial surrogacy and her legal costs.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
