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) 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. 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.
Issues to be decided
Lady Hale set out the three issues for the Court to determine:
(1) Are damages to fund surrogacy arrangements using the Claimant’s own eggs recoverable?
(2) If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
(3) In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?
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 that an arrangement which conformed to English law would not be contrary to public policy. But, she went further. She confirmed that where the evidence demonstrates a reasonable procedure with reasonable prospects of success 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 were not truly restorative of what the claimant had lost but it would be possible to remedy the loss of a womb through surrogacy. In so doing, she accepted that the view that she had expressed in Briody, that using donor eggs was seeking to give the claimant something different “was probably wrong then and is certainly wrong now.”
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. However, given the growing support for surrogacy and assisted reproduction shown by the courts and government policy and that it was not against the law in the UK for a commissioning parent to do any of the acts prohibited by section 2(1) of the Surrogacy Arrangements Act 1985, the majority decided that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.
However, the Court did set out some important limiting factors, namely that: the proposed programme of treatments 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 the costs involved must be reasonable. Lady Hale was keen to emphasise that unless the foreign country had a well-established system of surrogacy in which the interests of all involved were properly safeguarded then it would be unlikely to be reasonable to seek a foreign commercial surrogacy arrangement.
Dissenting Judgment of Lord Carnwarth (with whom Lord Reed agreed)
The focus of the dissenting judgment was in respect to the third issue, namely whether damages to fund the cost of the commercial surrogacy arrangements in California, where commercial surrogacy arrangements were not unlawful, were recoverable. Lord Carnwarth opined that these should not be recoverable as a matter of “legal policy” (as opposed to public policy). As to the definition of what constitutes legal policy, he relied on Lord Millett’s explanation in Rees v Darlington Memorial Hospital NHS Trust that when considering a novel head of damages, the Court is “concerned to maintain the coherence of the law”. In Lord Carnwarth’s judgment, it would be contrary to that principle “for civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law.” He considered his view was reinforced by the fact that the Law Commission’s paper had not proposed any material change to commercial surrogacy arrangements despite the significant developments in society’s view to surrogacy and family life.
The Court took great benefit from the Law Commission’s joint consultation paper “Building families through surrogacy: a new law”, published in June 2019, and the dramatic developments in surrogacy that have taken place in recent times described therein. The paper states at the outset that “the law relating to surrogacy is now outdated and needs to be changed to reflect current attitudes towards surrogacy, and understandings of how this way of building a family works.” The Supreme Court’s judgment is certainly the Court’s best effort to change the law for individuals while working within the confines of the existing legislation.
It is likely that claimants who have had their ability to bear children impaired by medical negligence will more often consider surrogacy arrangements now that commercial surrogacy arrangements are recoverable. The costs of these arrangements will remain higher given that Claimants will have to go abroad to well-established and well-regulated foreign jurisdictions. However, it is unlikely that there will be a floodgate of claims as claimants will have to pass a number of hurdles before an argument on the basis of Whittington is successful. In particular, the claimant will have to show that the proposed treatment programme is reasonable which will no doubt require compelling evidence as to the reason for the number of children she and her partner are keen to bear and evidence that the proposed treatment programme has good prospects of success. The claimant will also need to have done their homework and explored all options for making surrogacy arrangements in the UK, and have good reasons to discount them, before going abroad for a commercial surrogacy arrangement.
Inevitably all those involved in these claims will be watching the developments proposed by the Law Commission closely. The Law Commission is expected to propose a final policy, a new scheme and a new bill by early 2022.
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  UKSC 14
  EWCA Civ 1010;  QB 856.
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  UKHL 52 at paragraph 105
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