The Supreme Court moves with the times - reasonable damages for surrogacy arrangements are recoverable

Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14

On 1 April 2020, the Supreme Court handed down a majority judgment 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.

Facts

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.

Decision

In a majority decision, led by Lady Hale, the Supreme Court decided that damages could be awarded for own-egg and donor-egg surrogacy arrangements in the UK and California to compensate a woman who had been wrongly deprived of the ability to bear her own children. The widespread acceptance of assisted reproductive techniques for which damages are payable means that there is no real basis to challenge the cost of surrogacy arrangements made on a lawful basis in this country and using the claimant's own eggs.   Lady Hale confirmed the view she expressed in Briody[3] that an arrangement which conformed to English law would not be contrary to public policy.  Now she has gone further.  Now she has confirmed that where the evidence demonstrates a reasonable procedure with reasonable prospects of success[4] and clear evidence of reasonable costs, the notion that foreign surrogacy was a "step too far" is no longer the case.  In so doing, she recognised that damages for UK surrogacy arrangements are restorative of what the claimant had lost through the negligence; it was the closest way of putting the Claimant in the position she would have been in had she not been injured.  Therefore it would be possible to award damages for surrogacy to remedy the loss of a womb.

As for the commercial contract in California, it was well recognised that surrogacy contracts are unenforceable in the UK and that the UK courts will not enforce a foreign contract which is contrary to public policy[5].  However, given the growing support for surrogacy and assisted reproduction shown by the courts and government policy, the majority decided that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.  The damages would be payable to the commissioning parent limited again by reasonableness, namely in respect of the proposed programme of treatment, the choice of the foreign surrogacy procedure and the costs.

Samantha Jones gives this short synopsis of the key elements of the decision.  It will be followed by greater analysis shortly.

[1] [2020] UKSC 14

[2] [2001] EWCA Civ 1010; [2002] QB 856.

[3] Ibid.

[4] Paragraph 44.

[5] Paragraph 49.