The Supreme Court moves with the times – reasonable damages for surrogacy arrangements are recoverable: An Analysis of Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14

On 1 April 2020, the Supreme Court handed down a majority judgment, led by Lady Hale, in Whittington Hospital NHS Trust (Appellant) v XX (Respondent)[1] determining the recoverability of damages for surrogacy arrangements for own-egg and donor-egg surrogacy in the UK and California.


The Claimant made a claim for clinical negligence as a result of two negligently reported cervical smear tests in 2008 and 2012 and negligently reported biopsies in 2012.  When the errors were detected, the Claimant's cervical cancer was too far advanced and life-saving treatment rendered her infertile.  The Claimant and her partner wanted four children, two of whom it was likely could be borne using the Claimant's own eggs and two of whom would need to be borne by use of donor eggs, all with her partner's sperm.  Her preference for the donor eggs was to proceed with surrogacy arrangements on a commercial basis in California or, if it was not funded, to use non-commercial arrangements in the UK.

In the High Court, Sir Robert Nelson allowed the claim for damages of the Claimant's own eggs but denied the Claimant's claim for commercial surrogacy and for donor eggs to be used on the basis that he was bound by the Court of Appeal decision in Briody v St Helen's and Knowsley Area Health Authority[2].  The Court of Appeal allowed the Claimant's appeal for both commercial surrogacy and for use of donor eggs on the basis that attitudes to commercial surrogacy had changed since Briody and dismissed the Trust's cross-appeal.  The Trust appealed to the Supreme Court.

You can read Samantha Jones's full post on our Civil Law Blog here.