Supreme Court rules on costs associated with commercial surrogacy abroad

Whittington Hospital NHS Trust v XX [01.04.20]

The focus of the Supreme Court appeal in this case was on the damages payable for the loss of the ability of the claimant to bear her own child and whether compensation should include the costs associated with commercial surrogacy abroad.

Background

Liability was admitted by the Hospital Trust for failing to detect severe dyskaryosis and invasive carcinoma, which led to the claimant undergoing chemo-radiotherapy (following the freezing of eight mature eggs) in 2013 at the age of 29. As a result, she was not able to bear children.

With reference to the history of this case, Lady Hale of the Supreme Court noted that at first instance, in the High Court, Sir Robert Nelson held (by way of a summary) as follows:

  1. He was bound by Briody v St Helen’s and Knowsley Area Health Authority [2002] and held that awarding damages for commercial surrogacy in California was contrary to public policy;
  2. Surrogacy using donor eggs was not restorative of the claimant’s fertility, however;
  3. Non-commercial surrogacy using the claimant’s own eggs could be restorative of her fertility and he awarded the claimant £74,000 in damages (£37,000 per pregnancy).

Lady Hale further noted that the claimant had appealed to the Court of Appeal against the denial of her claim for commercial surrogacy and the use of donor eggs, with the Hospital Trust cross-appealing against the award (£74,000) for the two “own-egg surrogacies”.

The Court of Appeal dismissed the cross-appeal and allowed the claimant’s appeal on the basis that public policy was not fixed in time and “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 Hospital Trust then appealed to the Supreme Court.

The Supreme Court decision

Lady Hale gave the majority judgment and dismissed the appeal, allowing the award for the costs associated with commercial surrogacy abroad.

Three central issues were considered in the appeal.

“(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 considered the law on surrogacy generally in its judgment and made clear that commercial surrogacy is not legal in the UK. Only reasonable expenses to the surrogate are permitted to be paid by the commissioning parent(s). Furthermore, the woman who bears the child is the legal mother until such time as the court makes an order in the commissioning parents’ favour. However, there is nothing to stop people making commercial surrogacy arrangements elsewhere in the world. Indeed, in California it is possible to make a binding arrangement and obtain a pre-birth order giving the intended parents legal status before the child is even born.

Lady Hale considered Briody (in which she also gave the leading judgment) and said the persuasiveness of the ratio in that case “is inevitably affected by the developments in law and social attitudes which have taken place since then.” These developments have been dramatic in terms of the law’s idea of what constitutes a ‘family’ and third parties taking part in surrogacy arrangements for payment.

Lady Hale also concluded at paragraph 40 of her judgment that:

Nothing which the claimant proposes to do involves a criminal offence either here or abroad. Her preferred solution is a Californian surrogacy which is lawful there and UK law does not prohibit her from arranging or taking part in it. Her second best solution would be lawful surrogacy arrangements here.

In considering restoration of what has been lost (in this case the claimant’s ability to bear a child), the steps taken must be reasonable ones and the costs incurred must also be reasonable. Lady Hale considered the following:

  1. “Whether it is ever possible to claim the costs of surrogacy arrangements, even where these are made on a lawful basis in this country and using the claimant’s own eggs.” Held; it is possible.
  2. “Whether it is possible to claim damages for UK surrogacy arrangements using donor eggs.” Held; subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.
  3. Whether the “costs of foreign commercial surrogacy” can be claimed. Held; it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy but the damages will be subject to important limiting factors such as:
  • “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
  • “The costs involved must be reasonable.” Lady Hale noted “many of the items in the Californian bill would also be claimable if the surrogacy took place here.”

Comment

This is a landmark decision which is perhaps inevitable considering the dramatic change in public views on surrogacy in recent years. It will follow that the NHS and private insurers will now inevitably see an increase in claims for commercial surrogacy arrangements. However, not every such claim will be immediately established, given the important caveats set out in the judgment.