Woman loses fight for cash to fund surrogate birth

A woman who was rendered infertile by a medical blunder 26 years ago lost a High Court appeal yesterday for damages to pay for a surrogate child.

Patricia Briody, a 48-year-old teacher, said words could not describe the pain she felt after three Appeal Court judges rejected her claim for the health service to fund a surrogate birth. Despite running up £50,000 in debts during her 12-year legal battle for compensation, she said she had not given up hope of having a child.

At yesterday's hearing, Ms Briody did win a small step forward for other women who are so badly damaged by medical blunders that they lose their capacity to have children. While the judges said her own claim for £78,000 to fund a surrogate birth was a "step too far", they said there may be some circumstances in which a victim should receive damages to fund a surrogate child.

Shattered after the verdict and supported by her partner, John Hill, Ms Briody said: "I don't know a word to describe how I feel. I am devastated. I am up to my eyeballs in debt – I have remortgaged my house, I have borrowed money off my brother. But I am glad I brought the case. They have recognised that surrogacy is valid. This might not be the end of it. I am still determined to have a child."

Ms Briody's harrowing story began when she had two stillborn children and an emergency hysterectomy before the age of 20. During her first pregnancy, at the age of 17, doctors did not notice that she had a malformed pelvis. And when she gave birth the second time her womb burst and had to be removed.

Ms Briody had always wanted children and consoled herself by fostering more than a dozen children. Then in the late 1980s she realised she could have a case against St Helens and Knowsley Health Authority in Merseyside, where she had been treated.

In January last year, a judge accepted that Ms Briody was made infertile because of negligence by the health authority and awarded her £80,000 in damages. But because Ms Briody had refused an out-of-court settlement of £110,000, she received no compensation and was liable for court costs. She had wanted a more sizeable sum to cover the costs of a commercial surrogacy in California.

At last year's ruling, the judge refused her claim because the chances of a successful pregnancy using her own eggs were so low on account of her age and because the use of commercial surrogacy agencies is against British law.

At yesterday's appeal, the judges were told that Ms Briody had now found a 30-year-old British nurse – Michaela Hewitt – who was prepared to volunteer as a surrogate mother on a non-commercial basis.

Under the care of Professor Ian Craft, at the London Fertility Clinic, she would either be implanted with Ms Briody's frozen eggs – making her the genetic mother – or use her own eggs, which would give a much greater chance of a successful pregnancy.

Lady Justice Hale, sitting with Lord Justice Judge and Lord Justice Henry, recognised how much having a baby meant to Ms Briody. But she said that payment of compensation for either method was a step too far. The chances of a successful outcome to a surrogacy using Ms Briody's six eggs were "so vanishingly small" that it would be unreasonable to expect the NHS to foot the bill, they said.

But a surrogate pregnancy using a donor egg was "not in any sense restorative" of Ms Briody's position before she "was so grievously injured", the judges added. "It is seeking to make up for some of what she has lost by giving her something different. Neither the child, nor the pregnancy, would be hers. While everyone has the right to try to have their own children by natural means, no one has the right to be provided with a child," the judges said.

Lady Justice Hale dismissed the health authority's arguments that funding a surrogate birth would be against public policy. This could be warranted where there were better chances of success.

After the verdict, Ms Briody, of Billinge, Merseyside, said she was at least £50,000 in debt, but would attempt to take a case to the European Court of Human Rights. Mr Hill, her partner, said: "I can't comprehend how traumatic this must be for her. I cannot imagine the pain she must be feeling."

Professor Craft said he was "profoundly disappointed" for Ms Briody, and said his clinic would consider whether charges for her treatment could be waived or met in some other way so the surrogacy could still go ahead. He said: "I feel such sympathy for her situation that I would give serious consideration to giving her treatment at minimal expense. I think it is a total tragedy."