SHARE

by VICTORIA OLIVER, Associate in the Spinal Injuries Team at law firm Bolt Burdon Kemp

A COMMON concern for many women with a spinal cord injury (SCI) is whether they will be able to get pregnant, carry a baby and give birth.

For almost all women with a SCI, the injury itself does not impact fertility. This is in direct contrast to men where research has shown that quite soon after injury the sperm is affected.

Women can still fall pregnant and carry a child, but this is rather an oversimplification of the issue and the reality is that women with a spinal cord injury have secondary complications which may make a pregnancy higher risk or more uncomfortable.

For the record, I do not have a spinal cord injury myself, but I have been pregnant twices so I have some limited experience of the kind of things that can crop up. The NHS website lists over 20 ‘common’ pregnancy symptoms; such delights including backache, bleeding gums and piles. During both my pregnancies I had at least 5 of the common pregnancy symptoms (I’m not going to disclose which ones) and I consider myself to have had a relatively easy time of it.

If you add in a SCI then you are looking at all of the ‘common’ pregnancy symptoms, in addition to some quite serious potential complications including kidney inflammation, pressure sores (which as well as being painful can render people bedbound for weeks at a time), increased risk of urinary tract infections and autonomic dysreflexia (AD). The latter is a condition affecting some people with SCI where their blood pressure suddenly rises.

AD is a serious condition for all those with SCI and, if left untreated, can result in stroke or death Labour and the enlargement of the uterus can trigger an AD episode. This can have very serious complications for both the mother and the baby, including intracranial bleeding, a low foetal heart rate and, in the most serious of circumstances, it can even prove fatal.

It is understandable that for some women with a spinal cord injury the risks surrounding pregnancy and/or labour are just too great; either for them, the baby or both.

If the risks or complications are such that falling pregnant and/or carrying a child is not viable then there are options. Alongside the more traditional routes of not having children at all or adopting, there are other options, such as freezing your own eggs to be used via IVF or surrogacy or using donor eggs which again could be used via IVF or surrogacy.

As a personal injury solicitor I have watched with interest over the years as the types of fertility treatment have expanded and wherever possible we try to include these costs within any claim.

Once upon a time a claim for Viagra for male claimants was considered ground-breaking but then this became the norm.

With regards the costs the female fertility things have recently changed. Approximately 20 years ago surrogacy costs were rejected by the courts. Recently however, a claimant took the issue to the Supreme Court in Whittington Hospital v XX [2020] UKSC 14.

The case in question concerned a lady who couldn’t have her own children as a result of medical negligence. Instead, she claimed for surrogacy costs using both her own harvested eggs and donor eggs and for surrogacy to take place in California. The costs of undergoing surrogacy in California were substantially higher but the claimant’s reasons were understandable as in England the surrogate birth mother maintains parental responsibility after birth until the paperwork is completed. There is, therefore, the potential for a surrogate to refuse to do this. In California however, parental responsibility is legally decided before birth.

The outcome of the court case was that the Supreme Court allowed all the costs and in doing so made it easier for injured women with injury related fertility issues to seek to recover these costs within their claims. Indeed the judgment makes for interesting reading as a reflection on changing views in society.

Twenty years ago when refusing the claimant the costs of surrogacy using donor eggs one of the judges commented that “Neither the child nor the pregnancy would be hers.” Jarring comments in today’s world.

Hats off, though, to the same judge who was involved in the recent decision and specifically commented that her previous opinion was “probably wrong then and is certainly wrong now.”

Pregnancy with a SCI is entirely possible albeit with the potential for added complications. For this reason, it is likely that a woman with a SCI may be more closely monitored throughout pregnancy and may have input from a multitude of medical professionals.

If, however, a woman feels that the risks are too high then there are alternative options. In the event that there is an ongoing personal injury claim then the recent judgment of Whittington has certainly brought the law up to date and claimants can be reassured that these claims, if reasonable and properly evidenced, are likely to be successful.