31 January 2019
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust  EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
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11 June 2018
In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27
On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.
The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.
In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.
Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.
The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.
These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:
The prohibition of abortion in cases of
- Serious malformation of the foetus;
- Pregnancy as a result of rape; and/or
- Pregnancy as a result of incest
was argued to be incompatible with
- Article 3 (the prohibition of torture and of inhuman or degrading treatment);
- Article 8 (the right of everyone to respect for their private and family life); and/or
- Article 14 (the prohibition of discrimination)
In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:
- Fatal foetal abnormality
- Rape up to the date when the foetus is capable of being born alive
- Incest up to the date when the foetus is capable of being born alive
The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.
The NIHRC appealed to the Supreme Court in London.
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