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Friday, 29 June, 2001, 11:51 GMT 12:51 UK
Surrogacy court battle fails
Margaret Briody
Maragaret Briody lost her appeal against the High Court decision
A 47-year-old woman left infertile by a hospital's negligence has failed in her appeal against the High Court's refusal to award her damages to fund a surrogate child.

Margaret Briody suffered a stillbirth at 18 and a year later lost her second child and her womb through obstetric mismanagement.

Ms Briody, of Haydock, Merseyside, said she is devastated by the decision and will continue to try for a baby.

"If this is British justice, I have lost all faith in it. I am still determined to have a child."


I am still determined to have a child

Margaret Briody

Surrogacy

In January last year, Mrs Justice Ebsworth accepted that Ms Briody was made infertile because of negligence on the part of St Helens and Knowsley Area Health Authority, and that she had suffered a psychiatric injury.

She awarded her 80,000 for pain and suffering - which was raised by agreement to 90,000 - although that still fell below a pre-trial settlement offer made by the health authority.

Margaret Briody
Margaret Briody is still determined to have a child

But because Ms Briody failed in her appeal she must now pay the authority's costs - which will wipe out that award.

The High Court originally refused damages for surrogacy on the basis that it would not be reasonable to "provide a legal remedy doomed to almost inevitable failure".

The judge had heard that Ms Briody's expert, Professor Ian Craft, had put her chances of success using her own eggs implanted into a surrogate at about 1%, while defence expert Lord Winston assessed them as "negligible".

Motherhood chances

Ms Briody had planned to use a commercial surrogate service in California, which the judge said was against the law in this country.

The appeal judges were told that six of Ms Briody's eggs had been successfully fertilised by her partner and frozen - although the chance of a successful live birth remains in the order of 1%.

But a surrogate mother, who had twice donated eggs to women who were both now pregnant, was willing on a non-commercial basis to carry Ms Briody's embryos or to act as an egg donor and to carry the resulting embryo.

Professor Craft, who quoted a success rate at his Harley Street clinic of 25% per treatment cycle, said in his written evidence that it was "highly likely" that Ms Briody would become a mother with donor eggs. Lord Winston said in his evidence that this was a "perfectly realistic estimate of the likelihood of success".

Lord Justice Henry, Lord Justice Judge and Lady Justice Hale concluded that expenditure on surrogacy in the case was not "reasonable" and that the authority should not have to fund it.

Lady Justice Hale said: "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."

She concluded that expenditure on surrogacy in the case was not "reasonable" and the defendant should not be required to fund it.

She added: "As I have already suggested, fertility, childbirth and child-rearing have such significance to most women, to how they see themselves, and to their hopes for themselves and others, that permanently to deprive a woman, especially a young and childless woman, of that fertility is to do her a grievous injury for which she deserves proper compensation.

"If she then chooses to spend some or all of that compensation in making the attempt to fill the gap, whether by donor egg IVF, surrogacy or adoption, then I would wish her well.

"But that is for her to choose and will depend upon the priority which she gives to pregnancy, genetic parentage, or child care.

"That is a separate matter from whether the defendant should be required to fund the required speculative expenditure on top of the award of damages for loss of amenity."

After the hearing, Ms Briody said that she no longer had the choice of spending compensation money in the way suggested by the Judge because the expense of the failed appeal had left her without sufficient funds.

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See also:

21 Jan 00 | Health
Infertile woman loses court claim
16 Feb 01 | Health
Internet rush to buy human eggs
20 Dec 99 | Health
Fight for dead man's sperm
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