A legal battle over whether the NHS should pay for a woman to have surrogate children in the US after failing to spot her cervical cancer and leaving her infertile is going to the Supreme Court today.

Whittington Hospital NHS Trust admitted negligently failing to detect signs of cancer for more than four years in the woman, known only as XX, which led to her developing a highly invasive cancer which needed chemo-radiotherapy and left her infertile at the age of 29.

The High Court has refused to award damages to cover the costs of four commercial surrogacies in California, where the practice is legal, because it’s illegal in the UK and therefore “contrary to public policy”.

But last December, the Court of Appeal said XX was entitled to £560,000 to cover the cost of having children by commercial surrogates in the US.

According to her solicitors, Irwin Mitchell, it was the first time the costs of surrogacy had been awarded in a claim for clinical negligence.

On Monday, a panel of five judges at the Supreme Court, the UK’s highest court, will hear the NHS Trust’s appeal against the award of damages to XX, who is now 36, for surrogacy.

The hearing will be Lady Hale’s last hearing before she retires from the role of president in January.

In a statement before the hearing, XX’s solicitor Anne Kavanagh said: “This is a tragic case where, due to no fault of her own, my client has suffered grievous injuries including infertility at a young age.

“It is more than a decade since her first smear test was wrongly reported by the Whittington Hospital.

“Her only hope of becoming a mother is by surrogacy, using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs.

“The Court of Appeal granted her the costs of that treatment in California where she will have the security of a legally enforceable agreement to protect her as well as the surrogate and the baby in the event of any dispute, something which would not be available to her under English law.

“Expert psychological evidence supports our client’s case that she will struggle to cope with the uncertainty of the UK system particularly given that none of this was her choice.

“We now ask the Supreme Court to confirm that the Court of Appeal’s judgement was correct in law so that she can begin to move on with her life once and for all.”

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