When a birth injury or medical negligence robs a woman of her fertility, the loss is not only physical, it is profoundly personal. For some women, the pathway to growing their family shifts from carrying a pregnancy themselves to relying on surrogacy.

As a surrogacy lawyer, I regularly meet women and families who never imagined they would need a surrogate. Some have experienced significant birth trauma and treatment that resulted in hysterectomy or permanent uterine damage. Others have suffered injuries during procedures that compromised their reproductive ability.

Women and people assigned female at birth who have a uterus, or have had their uterus removed, often need to establish a medical need for surrogacy.

Claims for injuries suffered due to medical negligence and misconduct can and should include the cost of surrogacy, which may not have been necessary were it not for the conduct of a medical practitioner.

Surrogacy is expensive, whether in Australia or overseas. There are legal fees, counselling, medical screening, IVF treatment, egg donation, embryo transfer procedures, pregnancy-related medical costs, insurance, and sometimes travel and accommodation expenses. If treatment occurs overseas, the costs can exceed hundreds of thousands of dollars.

Medical negligence claims can include the reasonable costs of future medical treatment and associated expenses. In some cases, this may include assisted reproductive treatment and surrogacy. The claim should reflect realistic, evidence-based projections of those costs, including multiple IVF cycles, and the legal and counselling requirements and the costs of the parentage order.

Personal injury lawyers should collaborate with fertility and surrogacy law specialists when assisting clients with a claim.

We cannot restore fertility once it has been lost. But we can provide financial recognition of the pathway that negligence has forced upon a family. If surrogacy is now the only realistic means of having a child, its costs be included in assessing damages.

Women facing this situation deserve advice that recognises not only their injury — but their future family. Personal injury lawyers are welcome to contact me and I am always happy to help if I can.

You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to episodes of the Surrogacy Podcast. You can also book in for a consult with me below, and check out the legal services I provide.