XXX v Whittington Hospital NHS Trust XX [2020] UKSC 14 Judgment 1st April 2020
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Written by Jonathan Godfrey.
A green light for foreign commercial surrogacy.
The Supreme Court by a majority of 3-2 (Lord Carnwarth and Lord Reed dissenting) dismissed the Defendant Trust’s appeal, thereby allowing the recovery of damages for the cost of a foreign commercial surrogacy arrangement.​
The majority judgment given by Lady Hale rejected the previous Court of Appeal authority of Briody v St Helens and Knowsley Area Health Authority  [2001] EWCA Civ 1010  and ruled that awards of damages for foreign commercial surrogacy are no longer contrary to public policy.​
The Defendant Trust had admitted liability for a failure by way of delay in detecting cancer of the cervix. But for the delay the Claimant would have kept her fertility as she would not have had to undergo chemo radiotherapy treatment that she subsequently underwent. ​
Prior to undergoing treatment the Claimant had 8 eggs frozen in storage. She had always wanted a large family. She wanted 4 children. The expert evidence is that it is probable she can have 2 children using her eggs and her partners sperm. To make up the family numbers donor eggs would be required.​
The Claimant would prefer to use commercial surrogate arrangements in California, but if not funded, non-commercial arrangements in the UK. Commercial surrogacy is permitted in California but not so in the UK. Surrogacy is permitted on a non-commercial basis in the UK.
At first instance, Nelson J considered that he was bound by the CA decision in Briody to:​
Reject the commercial surrogacy claim in California as contrary to public policy ​
Hold that surrogacy using donor eggs was not restorative of the Claimant’s fertility​
Non-commercial surrogacy using the Claimant’s own eggs however could be considered restorative of her fertility and he awarded her the sum of £37,000 for each pregnancy.​
The Claimant appealed the denial of her claim for the cost of commercial surrogacy and the use of donor eggs. The Defendant Trust cross-appealed the award for the two own egg surrogacies.​
The Court of Appeal (McCombe, King and Nicola Davies LJJ) dismissed the cross appeal and allowed the Claimant’s appeal. ​
The Court of Appeal reasoned that public policy was not fixed in time ( Briody was 2001 ) and now had to be judged by the framework laid down by the Supreme Court in Patel v Mirza [2016] UKSC 42. Attitudes to commercial surrogacy had changed since Briody and perceptions of the family had also changed, and the use of donor eggs could now be viewed as restorative.
Giving the lead judgment of the court, Lady Hale (who had given the leading judgment of the Court of Appeal in Briody) identified three issues, namely:​
Are damages to fund surrogacy arrangements using the Claimant’s own eggs recoverable ? ;​
If so, are damages to fund surrogacy arrangements using donor eggs recoverable?; and
In either event, are damages to fund the cost of commercial surrogacy arrangements  in a country where this is not unlawful recoverable?
In answer to each question, Lady Hale specified:​
In Briody she did not consider that an arrangement that conformed to English Law would be contrary to public policy. The question was whether it was reasonable to seek to remedy the loss of a womb through surrogacy. “This would depend upon the chances of a successful outcome”. In Briody, “they were vanishingly small”, but with the right evidence of the reasonableness of the procedure and the prospects of success “it should be capable of attracting an award”. Here the chances of success were reasonable and the claim should succeed .​
In so far as claiming damages for UK surrogacy using donor eggs , Lady Hale noted that “in Briody I expressed the view that this was not truly restorative of what the Claimant had lost […] We need not concern ourselves with whether or not this was technically obiter. In my view it was probably wrong and is certainly wrong now […] I would therefore hold that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs”.​
The final question, concerning the costs of foreign commercial surrogacy was the most difficult of all. They are unenforceable in the UK, why then should the UK courts facilitate the payment of fees under such a contract by making an award of damages to reflect them ? It was recognised by Lady Hale that since Briody the courts have striven to recognise the relationships created by surrogacy. Government policy now supports it and assisted reproduction has become widespread and socially acceptable. Damages for the cost of foreign commercial surrogacy are therefore no longer contrary to public policy.
There are however limiting factors to the award of damages for foreign surrogacy:​
The proposed programme of treatments must be reasonable;​
It must be reasonable for the Claimant to seek the foreign commercial arrangements proposed rather than make arrangements in the UK. The country concerned must have a well established system in which the interests of all , the surrogate, the parents and the child are properly safeguarded; and
The costs involved must be reasonable.​
Comment
In a case note dated February 2019, NHS Resolution recognised following the Court of Appeal judgment, that “if the ruling is not overturned we are likely to see other claims for similar arrangements, which could prove very expensive for the NHS”. The ruling by the Supreme Court has now brought the fears home to roost. It now remains to see to what extent those fears are realised.
