Recoverability of the costs of surrogacy: XX v Whittington Hospital

This blog is by Charley Turton of 12 King’s Bench Walk

The factual background

The Defendant trust admitted negligence in failing to detect in Ms X signs of cancer from smear tests carried out in 2008 and 2012 and from biopsies performed in 2012 and 2013. Ms X developed cervical cancer for which she required chemo-radiotherapy treatment which in turn led to infertility and severe radiation damage to her bladder, bowel and vagina.

Her delayed diagnosis meant that Ms X was unable to have fertility saving surgery which otherwise would have been available to her. She suffered a complete loss of fertility. She postponed treatment for her life-threatening cancer in order to take second and third opinions on whether her fertility could, after all, be saved. The opinions confirmed her complete loss of fertility and she underwent a cycle of ovarian stimulation and egg harvest, producing 12 eggs which were then cryopreserved by vitrification.

Ms X underwent surgery for her cancer followed by a course of chemo-radiotherapy which led to debilitating and distressing side effects, including premature menopause.

The onset of infertility led to Ms X and her long-standing partner deciding to have their own biological children by surrogacy. Coming from a large family, Ms X herself intended to have four children. The couple’s wish was to have the relevant surrogacy carried out in California under a commercial arrangement.

The three issues in the case

1. Was Ms X entitled to recover the cost of commercial surrogacy arrangements in California? (“the commercial surrogacy issue”)

Giving judgment in the High Court, Sir Robert Nelson held that commercial surrogacy arrangements were still illegal in the UK (under the Surrogacy Arrangements Act 1985 (“SAA”) ss.2 and 3) and thus were contrary to public policy. He found that he was bound by the decision of Lady Justice Hale in Briody v St Helens and Knowsley Area Health Authority[2002] QB 856 (“Briody”). It did not matter that a contract made in California was lawful; in this country such a contract is unlawful and could not found a claim for the expenses of it as damages.

2. Was Ms X entitled to recover the cost of UK based surrogacy using donor eggs as opposed to her own eggs? (“the donor egg issue”)

The claim in respect of UK surrogacy had been confined to the use of the mother’s own eggs, following dicta in Briodywhereby Hale LJ said that to make an award to a mother for the use of donor eggs would be “seeking to make up for some of what she has lost by giving her something different” as“neither the child nor the pregnancy would be hers.”

3. Should the PSLA award be reduced? (“the PSLA issue”)

Ms X was originally awarded £160,000 for PSLA. £15,000 of that sum was awarded to account for the fact that Ms X’s claims for damages in respect of surrogacy in California and provisional damages for psychological sequelae had been refused. The Court of Appeal considered whether PSLA should be reduced in the event that Ms X was successful on appeal of the commercial surrogacy issue.

The commercial surrogacy issue

The larger part of McCombe LJ’s 27-page judgment is devoted to careful consideration of this issue, and the judgment in Briody.

It was arguedon behalf of Ms X that the ratio of Briodywas simply that the prospects of successful surrogacy in that case were so “vanishingly small” that the expenditure was not “reasonable” and, therefore, not recoverable as special damages. In contrast, the expert evidence from the consultant gynaecologists in the case of Ms X was that, on a balance of probabilities, Ms X would achieve either one or two live births from her cryopreserved eggs. The data for donor eggs gave a slightly lower prospect of success.

McCombe LJ held that the ratio of Briodywas in fact twofold. The second limb, the public policy/illegality consideration, can be summarized as follows: the surrogacy agreement proposed by the Claimant was unlawful in the UK and it would be wrong to award damages to acquire a child by methods which did not comply with English law.

However, as is made clear in the judgment, amendments to UK legislation and shifts in public policy surrounding surrogacy mean that the legal landscape has shifted considerably from what it was in 2001. The following were cited as examples:

• Under the Human Fertilisation and Embryology Acts (“HFEA”) 1990 and 2008, third party surrogacy relationships in this country are now permitted in limited circumstances.
• While “commercial” payments remain unlawful, reasonable payments to surrogates are now allowed; under the SAA ss. 2(2A), 2(5A) and 2(8A).
• Advertising for surrogates may now be placed by non-profit making bodies: Ibid. s. 3(1A).
• The family courts may now sanction overseas surrogacy arrangements by way of “parental orders”, including the sanction of payments made in the context of such arrangements: see HFEA 1990 s.30 and HFEA 2008 s.54.
• Under s.54 of the 2008 Act, the court can make an order in favour of persons, in defined relationships, for a child born by surrogacy to be treated in law as the child of the applicants, provided certain conditions are satisfied.

McCombe LJ further referred to Patel v Mirza [2016] UKSC 42 which, he said, “gives this court a fresh opportunity to examine the ‘public policy’ behind the bar to this particular civil claim.”

Ms X did not propose to do anything illegal. She intended to enter into an arrangement which was lawful by the law of the place where it was made and, in making such an arrangement, she would not be guilty of any criminal offence, either in the UK or abroad.

SAA s.2(1), banning commercial surrogacy, relates solely to acts undertaken in the UK, and even then, only to a limited extent: there is no indication of an intention on the part of Parliament to give the section extraterritorial effect. To the contrary, SAA s.2(1) is expressly limited to a prohibition of actions “in the United Kingdom”.

As such it was held that the law no longer requires a bar to recovery of the damages claimed by Ms X on public policy grounds.

The donor egg issue

The Court of Appeal’s consideration of this issue was succinct and discernibly unambiguous. It can be summarised in three propositions:

• Hale LJ’s comments in Briody, to the effect that “donor eggs” surrogacy is not truly restorative, are obiter.
• Attitudes have moved on since 2001, such that the characterisation of a child born with only one of their parents’ genes as somehow worth less than a child born of “own egg” surrogacy no longer stands up to analysis in modern society.
• Therefore, in modern law of restorative compensation, the distinction between “own egg” surrogacy and “donor egg” surrogacy, is artificial and cannot be maintained.

The PSLA issue

It was conceded by Ms X that there should be a reduction in the total award of £160,000 to reflect the fact that the additional award of £15,000 was in respect of the loss of the appellant’s claim for surrogacy in California and provisional damages for psychological sequelae.

However, it was also pointed out that the surrogacy procedures in California will carry their own risk of failure which should be reflected in any award of damages. There was force in that argument. Accordingly, the Court of Appeal found there should be a reduction in the total award of £160,000 but account should also be taken of the risk of failure in the surrogacy procedures. The award for PSLA was reduced by £10,000 to £150,000.

Comment

This case confirms that public policy is not immutable, and the courts are likely to take a purposive approach to the legislation in issue. As McCombe LJ put it: “Focus on what the prohibition is about is the core of the modern law of illegality.” In this case the answer was clear: Ms X proposed to do nothing wrong and the ‘mischief’ which the SAA intended to prevent was that of profit-making commercial surrogacy businesses.

For surrogacy claims in particular, it is worth noting that the Court of Appeal was not called upon to consider:

• whether the attempt to achieve a “four child” family in this case was reasonable in all the circumstances, or
• whether the various surrogacy and medical steps were the reasonable way of achieving the result, such that damages should be awarded on that basis.

McCombe LJ noted: “Those matters were not in issue in this case, as they might well be in future cases.”