In this blog post, 12KBW pupils Samuel Cuthbert and Megan Griffiths discuss the recent case of Whittington Hospital NHS Trust v XX  UKSC 14, in which the Supreme Court allowed the Claimant in a clinical negligence claim damages for the cost of foreign commercial surrogacy and donor egg surrogacy arrangements.
From 2008 onwards, the Claimant had a number of smear tests that showed early signs of cancer. The Trust admitted that they negligently failed to detect these signs in the results. The result of the delay in diagnosis was that the Claimant’s cancer was much more advanced when it was eventually detected some years later. She required chemo-radiotherapy treatment which would make her infertile (she also suffered significant other injuries with life-changing impacts, but these were not the subject of the appeals). If she had been diagnosed earlier she could have had surgery to save her fertility.
The Claimant delayed her cancer treatment to seek further medical opinion on whether she could have fertility saving treatment (which she could not) and to harvest twelve of her eggs before she lost her fertility, in the hope of using them to have children at a later date.
The court accepted the evidence of the Claimant and her partner that they wanted to have 4 children. They wished to do so using a commercial surrogacy arrangement in California – both the arrangement and their parenthood would be legal there from the outset, and they could choose their surrogate. If they could not recover the cost of this, they would instead reluctantly use a surrogate in the UK, where commercial surrogacy is unlawful and surrogacy generally does not have the same advantages as in California. The Claimant wished to use her own cryopreserved eggs, but, if the attempts to have four children using her own eggs were unsuccessful, she sought an award to fund donor eggs instead.
The First Instance Decision
There were three points of law for the trial judge (and subsequently the Court of Appeal and Supreme Court) to consider in the surrogacy claim:
(i) Could the Claimant recover the cost of surrogacy using her own eggs?
(ii) Could the Claimant recover the cost of surrogacy using donor eggs?
(iii) Could the Claimant recover the cost of commercial surrogacy in California?
Sir Robert Nelson, sitting as a judge in the Queen’s Bench Division, allowed the Claimant’s claim for the cost of two surrogacies in the UK using her own eggs, based on the expert evidence that, on the balance of probabilities, her twelve eggs would produce two live births. The judge concluded that the court was bound by Briody v St Helens and Knowsley Area Health Authority  QB 856 to dismiss the claims for commercial and donor egg surrogacy. In Briody, the Court of Appeal held that commercial surrogacy was contrary to public policy since it was unlawful in the UK and thus not a recoverable head of loss. It also held that surrogacy with donor eggs was not restorative of the claimant’s loss since the loss was the ability to have her child, not a child [Briody; 25]; surrogacy with donor eggs would not be restorative of the Claimant’s fertility. However, as Sir Robert Nelson had dismissed the claim for commercial surrogacy, he uplifted the PSLA award to reflect this.
The Court of Appeal Decision
The Claimant appealed against the refusal of her claims for (1) commercial surrogacy in California and (2) surrogacy in the UK using donor eggs. The Defendant cross-appealed against the award for surrogacy in the UK using the Claimant’s own eggs.
The Court of Appeal allowed the Claimant’s appeal on both points and dismissed the Trust’s cross-appeal.
In allowing the claim for the cost of commercial surrogacy, the Court of Appeal carried out a detailed analysis of Briody, the public policy background and subsequent case law, including the Supreme Court’s decision in Patel v Mirza  AC 467. The Court of Appeal found that the UK public policy on commercial surrogacy arrangements was the crucial issue, in particular whether the perception of public policy should be the same today as it was in 2001.
McCombe LJ’s interpretation of the extent of the UK’s law against commercial surrogacy was as follows : “the underlying purpose of the prohibition [of commercial surrogacy in domestic law] is to render acts of commercial surrogacy unlawful in the UK. It does not purport to legislate for any country other than the UK and does not prohibit Ms X from doing what she proposes. Her intended action is not the target of the current legislation (as amended) at all.” He therefore considered that the law no longer required a bar to recovery of the damages sought on the grounds of public policy.
However, the Court of Appeal adjusted the general damages downwards to reflect the new addition of special damages in respect of commercial surrogacy.
The parties’ submissions on the recoverability of surrogacy using donor eggs focused on the restitution principle. Counsel for the Claimant submitted that the principle required the Claimant to be put in the pre-negligence position “as nearly as possible”, whereas counsel for the Trust submitted that it required her to be put in “the same position” . The Trust submitted that, in accordance with Briody, using donor eggs would not satisfy this requirement.
The Court of Appeal allowed the Claimant’s appeal on this point, finding that “the distinction between ‘own egg’ surrogacy and ‘donor egg’ surrogacy, employing the partner’s sperm, would be entirely artificial”. The Court, having regard to the development of social attitudes, was thus able to depart from the dicta in Briody.
The Court of Appeal dealt with the cross-appeal against the award for surrogacy using the Claimant’s own eggs swiftly, and upheld the trial judge’s decision that this was a recoverable head of loss, whether used in California or in the UK .
The Supreme Court Decision
The Defendant appealed all three aspects of the Court of Appeal’s decision on the surrogacy claim and the Supreme Court heard the appeal in December 2019.
The issues for the Supreme Court to consider were the same as those before the High Court and Court of Appeal, as set out below:
(i) Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
(ii) If so, are damages to fund surrogacy arrangements using donor eggs recoverable? and
(iii) In either event, are damages to fund commercial surrogacy arrangements abroad, in a country where this is not unlawful, recoverable?
Lady Hale first gave a review of how attitudes to surrogacy had changed since the decision in Briody.
Lady Hale then referred to the basic tortious principle raised in the Court of Appeal, namely that damages for an injury should, as far as possible, place the injured party in the position they would have been in but for the negligence. The qualifications to that are twofold. Firstly, some heads of loss are irrecoverable because they would be contrary to legal or public policy. Secondly, in seeking to restore the injured party to their pre-injury position, the steps taken and the costs thereby incurred must be reasonable.
Looking at the first issue of whether damages to fund surrogacy arrangements using the claimant’s own eggs were recoverable, Lady Hale referred to her views in Briody. There, she had made the consideration of whether it was reasonable to seek to remedy the loss of a womb through surrogacy; she had not considered that such an arrangement conforming to English law would be contrary to public policy. The reasonableness of such an arrangement would depend on the chances of a successful outcome, and, in Briody, they were “vanishingly small”. Lady Hale had expressed tentatively that, had the prospects of a successful outcome been higher, it would still have been a “step too far” to allow recovery; however, she had accepted the force of the contrary argument that, given the right evidence of the reasonableness of the procedure and the prospects of success, an award may be made. In the Whittington judgment, Lady Hale eschewed her former tentativeness and agreed with Sir Robert Nelson that it was difficult to see why the claim should not succeed, where the prospects of success were reasonable and where the claimant had postponed cancer treatment to have her eggs harvested.
In respect of the second question of whether damages to fund surrogacy arrangements using donor eggs were recoverable, Lady Hale again referred to her view in Briody. There, she opined that such recovery was not truly restorative of what the Claimant had lost, rather it sought to compensate the loss with something different. However, in Whittington, Lady Hale changed her view, stating that this view was “probably wrong then and is certainly wrong now” . She held that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.
In making her judgment, Lady Hale referred to the Claimant’s (albeit inexact) analogy of this situation being no different from fitting a prosthesis to an amputee. Whilst a claimant is not being supplied with an actual replacement womb, in many ways she is being provided with a temporary womb through the generosity of a surrogate mother. Lady Hale also accepted the argument put forward by the claimant’s counsel in Briody that a woman can hope for four things from having a child: (i) the experience of carrying the child and giving birth; (ii) the perpetuation of one’s own genes; (iii) the perpetuation of one’s partner’s own genes; and (iv) the pleasure of bringing up a child as one’s own. Donor egg surrogacy would provide two of these, including number four, which, for many women, would be the most important. Lady Hale therefore questioned why this should be denied if it was the best that could be achieved to make good the injured party’s loss. Lady Hale held that the argument was reinforced by the ongoing changes in the idea of what constitutes a family, neatly captured by King LJ in the Court of Appeal at : “psychologically and emotionally the baby who is born is just as much ‘their’ child as if one of them had carried and given birth to him or her”.
Turning to the final issue of whether damages to fund the cost of commercial surrogacy arrangements abroad were recoverable, Lady Hale held that it was no longer contrary to public policy for such an award to be made. However, she begun by acknowledging that surrogacy contracts are unenforceable in the UK and she cited the well-established principle that the courts will not enforce a foreign contract which would be contrary to public policy in the UK. The question was therefore why UK courts should enable the payment of fees under such contracts by making an award of damages to reflect them.
In the judgment, Lady Hale noted that many of the costs involved in the surrogacy process would be claimable if the surrogacy took place in the UK (although might be lower in amount): (i) the cost of the fertility treatment and egg donation; (ii) the payment to the surrogate mother (which would, in any event, be likely to be retrospectively authorised by a court); and (iii) fees paid to UK lawyers. The items that would be unlawful in the UK, but not the US, were the fees paid to the surrogacy agency and the fees paid to US lawyers. However, Lady Hale queried the extent to which these should taint the other items on the bill.
Lady Hale further noted that the recipient of damages would be the Claimant, who is the commissioning parent, and that it was not against the law for either a commissioning or surrogate parent to do those things prohibited by s2(1) Surrogacy Arrangement Act 1985. The only deterrent for commissioning or surrogate parents is that the court hearing an application for a parental order might refuse to retrospectively authorise payments. However, Lady Hale pointed out that there is no evidence of that ever having been done. She also referred to the court’s paramount consideration as being the welfare of the child, which was almost certainly best served by cementing the child’s home and family links with the commissioning parents.
Lady Hale again drew attention to the post-Briody position. She noted that assisted reproduction techniques are now widespread and socially acceptable, that there are exerted attempts by the courts to recognise relationships created by surrogacy, and that surrogacy is now accepted by the government as a valid way of creating family relationships. She stated that, whilst the risks of exploitation and commodification are heightened in commercial surrogacy, they were not thought an insuperable ethical barrier to properly regulated arrangements.
However, importantly, Lady Hale applied the following limiting factors to any such awards :
- The proposed programme of treatment must be reasonable;
- It must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK (and arrangements are unlikely to be reasonable unless the foreign country has a well-established surrogacy system protecting the interests of all parties); and
- The costs involved must be reasonable.
Lord Carnwath (with whom Lord Reed agreed) dissented solely on the third issue. In the dissenting judgment, he opined that the issue was one of “legal policy”, for which the objective would be consistency or coherence between civil and criminal law. He considered it would be contrary to that principle for the civil courts to award damages for conduct which would be a criminal offence if undertaken in the UK. Moreover, he stated that there had been no change to the critical laws affecting commercial surrogacy in the UK since Briody, and that the Law Commission had not proposed any material change in that respect. Without such change to the critical laws, allowing damages for commercial surrogacy would not be consistent with legal coherence.
This decision gives judicial recognition to the fact that social attitudes to surrogacy have changed significantly since the Court of Appeal’s decision in Briody. A claimant who becomes infertile as a result of negligent treatment can now, subject to the limiting factors set out above by Lady Hale, recover the cost of commercial surrogacy and/or surrogacy using donor eggs. Prima facie, these limiting factors now provide judicial discretion to decide such claims on the basis of reasonableness and their particular facts. Whilst this is good news for claimants intending to bring such claims, there are several elements in these claims which defendants will be able to challenge.