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14/04/2020

Whittington Hospital NHS Trust v XX [2020] UKSC 14 (Case Summary by Joanne Twomey)

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Factual Background

The Respondent (X) had been rendered infertile due to the trust’s negligence. Liability was admitted.

The focus of this case was on the damages payable for the loss of X’s ability to bear her own child. X and her partner had always wanted to have four children. It was probable that, through surrogacy arrangements, X could have two children using her eggs and her partner’s sperm. They wished to have two further children using donor eggs and her partner’s sperm. Their preference was to use commercial surrogacy arrangements in California.

The High Court

In assessing damages the judge held in relation to surrogacy that, following Briody v St Helens and Knowsley AHA [2001] EWCA Civ 1010, he was bound to reject the claim for commercial surrogacy in California as contrary to public policy, and also to hold that surrogacy using donor eggs was not restorative of X’s fertility. By contrast, own-egg surrogacies could be considered restorative of her fertility and he awarded damages in respect of each of those two pregnancies.

The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross-appealed against the award for the two own-egg surrogacies.

The Court of Appeal

The Court of Appeal dismissed the cross appeal and allowed the claimant’s appeal on both points. Public policy was not fixed in time and had now to be judged by the framework laid down by the Supreme Court in Patel v Mirza [2016] UKSC 42; [2017] AC 467. Attitudes to commercial surrogacy had changed since Briody; perceptions of the family had also changed and using donor eggs could now be regarded as restorative.

The Trust appealed to the Supreme Court.

The Supreme Court

The Law

In UK law, the Surrogacy Arrangements Act 1985 s.2(1) banned third parties from initiating or taking part in negotiations with a view to making surrogacy arrangements on a commercial basis. The offences could only be committed in the UK: there was nothing to stop agencies based abroad from helping to make surrogacy arrangements on a commercial basis abroad. Briody was not binding on the Supreme Court, and its persuasiveness was affected by subsequent developments in law and social attitudes relating to surrogacy. Briody was not followed.

Assessment of Damages

Damages in tort sought to put the injured party in the position they would have been had they not been injured, but they could not be recovered where it would be contrary to legal or public policy, or unreasonable (¶41 – 43)

In respect of own-egg surrogacy arrangements in the UK – Briody did not rule out the award of damages; rather, it held that whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome (¶44).

In respect of surrogacy arrangements using donor eggs – the view expressed in Briody, that this was not restorative of what the claimant had lost, was probably wrong at the time and certainly wrong now. The idea of what constitutes family has changed since Briody and there are now many different kinds of family. Thus, subject to a reasonable prospect of success, damages could be claimed for the reasonable cost of UK surrogacy using donor eggs (¶45 – 48).

In respect of the costs of foreign commercial surrogacy – UK courts would not enforce a foreign contract if it would be contrary to public policy. Nothing the claimant proposed to do was unlawful and many of the items in the Californian bill would also be claimable if the surrogacy had taken place in the UK. Added to that were the social and legal developments which had taken place since the decision in Briody: the courts have recognised the relationships created by surrogacy; the government now supported surrogacy as a valid way of creating a family; and the use of reproductive techniques was now widespread and socially acceptable. Awards for damages for foreign commercial surrogacy were therefore no longer contrary to public policy. However, there were important factors limiting the availability and extent of such awards: the proposed treatment had to be reasonable; it had to be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements in the UK, and the costs involved had to be reasonable (¶49 – 53).

The appeal was dismissed.

To view the full judgment, please click here.

This case summary was written by Joanne Twomey, Old Square Chambers.

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