Supreme Court upholds Court of Appeal Judgment on Recovery of Surrogacy Costs

In Whittingham Hospital NHS Trust v XX [2020] UKSC 14 the Supreme Court has decisively over-ruled the earlier Court of Appeal decision in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010 and held that the costs of surrogacy using donor eggs and foreign commercial surrogacy costs were recoverable as a matter of law.  Lady Hale in a leading majority judgment held that the Court of Appeal had been wrong in Briody to reject a claim for surrogacy using donor eggs on the application of conventional tortious principles and it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.  The latter reasoning was brought into particularly sharp focus by the fact that it was Lady Hale herself who had given the leading judgment in Briody in the Court of Appeal in 2001.

In XX the admitted clinical negligence of the Defendant Trust had caused damage to the Claimant’s womb such that she could not bear children herself. The focus of the proceedings in the Supreme Court related to the damages payable for the loss of the ability to bear her own child.  Sir Robert Nelson at first instance (reported at [2017] EWHC 2318 (QB)) held that he was bound by the Court of Appeal in Briody to reject claims for commercial surrogacy in California as contrary to public policy, and second, to hold that surrogacy using donor eggs was not restorative of the claimant’s fertility in accordance with views expressed by Lady Justice Hale, as she then was, in Briody.  The Court of Appeal (reported at [2018] EWCA Civ 2832) allowed the Claimant’s appeal on both grounds.   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.

In her judgment in the Supreme Court Lady Hale answered each of the questions posed in the appeal in the affirmative:-

• Damages to fund surrogacy arrangements using the claimant’s own eggs were recoverable

It was difficult as a general principle to argue that such a claim should not succeed where the prospects of success were reasonable (Lady Hale noting that they had been vanishingly small in Briody but that the door had been left open to such claims where prospects were stronger as was now often the case).

• Damages to fund surrogacy arrangements using donor eggs were recoverable

Lady Hale considered her own earlier view to the contrary was wrong.  Such an arrangement was the closest one could get to putting the claimant in the position she would have been in but for her injuries and the dramatic changes in what constituted a family over the last 20 years displaced any argument that the use of donor eggs was not restorative of what the claimant had lost, subject to such treatment having reasonable prospects of success.

• Damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful were recoverable

Such an arrangement was found to no longer be contrary to public policy after a detailed consideration of the underlying principles of UK surrogacy law and the other developments since Briody, including a proposed Law Commission new pathway for surrogacy which essentially recognised that there was no insuperable ethical barrier to properly regulated commercial surrogacy arrangements.

There were, however, a number of important control mechanisms imposed by the Supreme Court.  The proposed programme of treatments must be reasonable including by reference to the number of children the claimant may have had but for any negligence.   It must be reasonable for the claimant to seek the commercial foreign arrangement rather than make arrangements in the UK with particular regard to the nature of the foreign country’s systems and regulations.  The costs would have to be reasonable and it would not be taken as granted that the Court would sanction the sort of sums being claimed in the claimant’s case as a matter of course (the principle of recovery being the only issue before the Court).

The Supreme Court provides much needed clarity on an area of law with conflicting Court of Appeal decisions and it also reflects the Supreme Court’s willingness to be judicially active in reflecting developments in modern UK life such that the law is not left outdated.

The Court has nonetheless imposed strict control mechanisms and whilst claimant interests will welcome the expansion of the circumstances in which surrogacy costs might be recovered, defendant interests will be well entitled to pay close scrutiny to the costings of claims they are presented with, as Lady Hale was careful not to open up the floodgates.

Written  by: James Marwick