Surrogacy 'opens door for claims'

ACC's decision to fund a surrogate for a woman who lost her womb in a medical mishap could open the door to a raft of claims, lawyers say.

In a first, the Crown entity has agreed to pay for a surrogate mother to have in-vitro fertilisation (IVF) on behalf of the North Island woman, who suffered complications after the caesarean birth of her first child, a healthy boy. The agency agreed to the IVF surrogacy as part of the woman's rehabilitation from what it regarded as a "treatment injury".

"The very issue really is whether it's creating a precedent," said Don Rennie, convener of the Law Society's Accident Compensation Committee.

"ACC says it's not but I can see that lawyers will be exploiting it as far as they can because it seems to me that it opens up the possibility of receiving compensation for lost opportunity.

"If it's going to be taken as a precedent for compensating for a loss of future opportunities, it's certainly opening the door to numerous other claims."

Mr Rennie said claims for lost opportunity could extend beyond fertility, citing an example of brain injury to a promising medical or law student who might have otherwise expected a successful career. ACC currently would not be compensating for that loss of opportunity, although it would pay out a lump sum.

"In this case, the loss was the opportunity to have a family and I would've thought if you wanted to spend that lump sum on having some sort of treatment then that was your concern, but it's not the concern of the ACC."

Auckland barrister Keith Reid expressed surprise at the decision. Mr Reid was ACC's lawyer for a number of years before going into private practice, where he now appears against them.

He cited a past case involving a paralysed client who sought to father a child. ACC would pay for the sperm to be taken, but would not pay for it to be implanted in the man's wife.

Mr Reid said replacing the definition of "medical mishap" with "treatment injury" in July last year may have made it easier for the woman to make her claim. The change meant claimants need not prove fault on the part of the doctor, or an adverse reaction with a 1 per cent rarity, he said.

"That probably helped unlock the door, possibly."

It was a "reasonable assumption" to expect more claims in light of the decision, he said.

ACC spokesman Laurie Edwards said the agency was not expecting an influx of claims.

"In terms of policy of what we can and can't do, there's nothing unusual here. This just happens to be the first one.

"If someone came in and they'd had some sort of accident or injury and it affected their fertility, we'd look at what the appropriate options were for them. All options would be considered."