The cost of commercial surrogacy abroad is a recoverable head of loss: Whittington Hospital NHS Trust v XX  UKSC 14
In Whittington Hospital NHS Trust v XX  UKSC 14, a judgment handed down on 1 April 2020, the Supreme Court held by a majority that the cost of commercial surrogacy treatment abroad was in principle recoverable as damages, whether or not the surrogacy treatment made use of the claimant’s own eggs.
The case concerned a young woman who had been rendered infertile due to the negligence of the Defendant NHS Trust. As a result of a succession of failures to diagnose pre-cancerous cervical changes, and thereafter a delay in diagnosis of cervical cancer, the Claimant was required to undergo radical treatment such that she could no longer conceive nor bear a pregnancy. She had no children, but twelve of her eggs had been cryopreserved. The option of motherhood by way of surrogacy was still available to her.
Amongst other heads of loss, the Claimant claimed the cost of four surrogate pregnancies from surrogates in California or the UK, using her own eggs and, if required, donor eggs.
Liability having been admitted, at first instance the Court was tasked with considering quantum alone. Sir Robert Nelson (sitting as Judge of the High Court) accepted the Claimant’s evidence that she had always wanted to have four children and that she now hoped to achieve such a family through surrogacy. While it was the Claimant’s case that she was willing to have surrogacy treatment in California or the UK, the Judge accepted the Claimant’s evidence that she had a strong and reasoned preference for pursuing treatment in California, due to significant differences between the legal and regulatory regimes governing surrogacy in the two countries. The medical experts were agreed that the Claimant would, on balance of probabilities, achieve only two live births from surrogacy with her own cryopreserved eggs.
UK surrogacy law is primarily contained within the Surrogacy Arrangements Act 1985 (“SAA 1985”), the Human Fertilisation Embryology Act 1990, and the Human Fertilisation Embryology Act 2008. Any woman who gives birth to a child is that child’s legal mother, even if the child was born as a result of a surrogacy arrangement between the birth (surrogate) mother and a ‘commissioning’ family. Legal parenthood can only be obtained by a commissioning family by way of a successful application for a parental order after the child has been born. A precondition for the granting of the application is that the court must be satisfied that no money or other benefit other than for expenses reasonably incurred has been given or received by the commissioning family in relation to the surrogacy or the order for making the arrangements, handing over the child, giving agreement, or making the order, unless authorised by the court.
The SAA 1985 bans commercial parties from initiating and/or taking part in surrogacy negotiations, but, by virtue of an amendment made in 2008, non-profit organisations are permitted to initiate surrogacy negotiations and receive reasonable payment for the same. Significantly, the legislation does not prohibit prospective commissioning parents or surrogate mothers from entering into commercial surrogacy agreements in the UK or abroad.
In California, commercial surrogacy arrangements are legal, well-established, and binding, and, amongst other advantages from the point of view of intended parents, a pre-birth order can be obtained confirming the commissioning parents’ legal parenthood.
Sir Robert Nelson awarded the Claimant damages for the cost of two surrogate pregnancies in the UK using her own eggs, assessed in the total sum of £74,000. However, he held that he was bound by the decision of the Court of Appeal in Briody v St Helens and Knowsley Area Health Authority  QB 856, first to reject the claim for commercial surrogacy in California as contrary to public policy, and second, to hold that the cost of surrogacy using donor eggs was irrecoverable for reason that the resulting child would be not restorative of the Claimant’s loss. The judgment can be found here.
The case of Briody concerned a woman who had lost her womb as a result of medical negligence in 1973. It was not until 2000, when Ms Briody was 47 years of age, that her claim for quantum was considered at first instance. She sought the cost of Californian surrogacy treatment using her own eggs. At first instance, this head of loss was rejected on the basis that the chance of achieving a successful surrogate pregnancy was less than 1%. Before the Court of Appeal, Ms Briody sought two cycles of surrogacy using her own embryos, and if that was unsuccessful, several more cycles using a surrogate’s eggs. The appeal was dismissed. Lady Justice Hale (as she then was) held:
- That the proposal that the defendant should pay the cost of surrogacy in California, involving as it did the services of a commercial surrogacy agency and a binding surrogacy agreement, was “contrary to the public policy of this country” and furthermore “it would be quite unreasonable to expect a defendant to fund it”;
- That a child obtained by way of surrogacy using a donor egg was “not in any sense restorative” of the claimant’s position before she was injured, in that “it is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers”.
Returning to the instant case, the Claimant appealed on two grounds. First, that the court had been wrong to find that damages for surrogacy in California were not recoverable on public policy grounds, for reason that (1) the ‘public policy points’ in Briody were merely obiter dicta, (2) legislation governing surrogacy in the UK had been significantly amended since 2002, increasing the scope of permitted payments, (3) the common law should reflect changes in societal attitudes, and (4) that the Claimant was not proposing to act unlawfully; in entering into a commercial surrogacy agreement in California she would not be committing a criminal offence in the USA or in the UK.
The second ground of appeal pursued by the Claimant was that donor egg surrogacy fell properly within the bounds of the restitutionary principle which underpins the law of damages in tort. In the event that she did not have enough of her own eggs to complete her family, a child born of a donor egg and her partner’s sperm would put her “as nearly as possible” back in the position that she would have been but for the Defendant’s negligence. In modern society, it was objectionable for the courts to hold that a child who did not share a genetic link with its mother was of lesser value to its family than one which did. Further, that something is ‘different’ does not mean that it is not restorative; a claimant who has lost his own leg can obtain damages for the cost of a prosthesis.
The Defendant cross-appealed against the order awarding damages for ‘own egg’ UK surrogacy and argued that, if the Claimant was awarded any further damages for surrogacy on appeal, a reduction should be made to the award made at first instance for general damages.
The Claimant’s appeal was allowed full. First, the Court of Appeal held that the domestic prohibition of commercial surrogacy agreements had no extra-territorial effect since the relevant statutory provision expressly referred to conduct within the United Kingdom alone, and so did not criminalise the conduct proposed by the Claimant. Second, having analysed public policy considerations through the lens of the Supreme Court decision in Patel v Mirza  AC 467, which addressed the scope of the doctrine of illegality as a defence to a civil claim, the Court concluded that the law “no longer require[d] a bar to the recovery of the damages” sought by the Claimant for the cost commercial surrogacy abroad.
In addition, the Court accepted that, in the context of modern society’s acceptance of an “infinite variety of forms of family life”, the distinction between ‘own eggs’ and ‘donor eggs’ was “entirely artificial” and could not be maintained.
The Defendant’s cross-appeal was successful in part, in that a £10,000 reduction was made to general damages. The judgment of the Court of Appeal can be found here.
The Defendant appealed. The Supreme Court was tasked with determining three issues:
- Were damages to fund surrogacy agreements in the UK using the Claimant’s own eggs recoverable?
- If so, are damages to find surrogacy arrangements using donor eggs in the UK recoverable?
- In either event, are damages to fund the cost of commercial surrogacy arrangements in a county where this is not unlawful recoverable?
The five Justices answered the first two issues unanimously in the affirmative, with Lady Hale giving the sole judgment for the Court. As to the first issue, it was held that as long as prospects of surrogacy success are reasonable, and that there are clear indicators that a claimant intended to pursue surrogacy, there was no reason why the costs of the same would not be recoverable.
As to the second issue, Lady Hale strikingly ruled that her own view in Briody, that surrogacy using donor eggs was not truly restorative of what the claimant had lost, was “probably wrong then and is certainly wrong now”. The Court was persuaded that motherhood was more than the perpetuation of one’s genes, noting that “for many women, the pleasure of bringing up children as one’s own is far and away the most important benefit of having children”. The author notes that this is certainly consistent with data from the HFEA which indicates that the number of women opting to pursue IVF with donor eggs continues to increase year-on-year.
The Court was however divided on the third issue. Lady Hale, giving judgment for the majority, held that the cost of commercial surrogacy abroad, provided that it was legal in the county in question, was recoverable in damages. The following factors were taken into account:
- That many of the items on the Californian bill of surrogacy costs adduced by the Claimant would be claimable as ‘reasonable’ costs under s2(A), SAA 1985, albeit that the sums in question were higher in California than they would be in the UK;
- That had such reasonable costs been incurred in the UK or abroad, they would likely have been retrospectively authorised by the Court. Indeed, costs of foreign commercial surrogacy were retrospectively approved by Hedley J in In re X and Y (Foreign Surrogacy)  EWHC 3030 (Fam);
- That there was an increasing body of academic legal opinion which argued that commercial surrogacy was not an intrinsic wrong;
- That many if not all of the ethical concerns relating to commercial surrogacy arrangements could be addressed by adequate regulation;
- That in 2019 the Law Commission proposed reform that would bring domestic surrogacy law closer to the Californian model, albeit with greater safeguards; and
- That, as observed by the Court of Appeal, “it has never been the object of the legalisation to criminalise the surrogate or commissioning parents”.
Lord Carnwarth dissented, on grounds of legal policy. Lord Reed agreed. It was their Lordships’ view that awarding damages in the civil courts “on the basis of conduct which, if undertaken in this country, would offend [the] criminal law” was contrary to the objective of ensuring consistency and coherence of the civil and criminal law in the UK.
This dissenting view is, in this author’s opinion, difficult to reconcile with express wording of the relevant prohibitions within the SAA 1985. In seeking, obtaining, and entering into a surrogacy agreement with the assistance of surrogacy agencies in California, and in thereafter bringing the child home to the UK, the Claimant will have committed no crime.
Unsurprisingly, the final matter addressed by the majority of the Court was the risk that the decision would open the floodgates to an unmanageable wave of claims for the cost of commercial surrogacy abroad. The Court held that “important limiting factors” remained, namely that claimants must prove that but for the negligence they would have had the number of children sought by way of surrogacy, that it must be reasonable for the particular claimant to seek foreign commercial arrangements, and the costs must be “reasonable”.
In practice, this is unlikely to provide much reassurance to NHS Resolution, medical indemnity bodies, or medical insurers. Litigation concerning cases in which a woman’s childbearing years have been prematurely cut short are seen all too commonly, and, in Lady Hale’s own words it was “hardly surprising” that the Claimant had a clear preference for surrogacy in California rather than the UK, given the respective legislative regimes. The hurdle to prove a reasonable preference for surrogacy abroad is not high.
The only solution, in this author’s view, is to further reform domestic surrogacy law, making the regime less daunting, better regulated, and more humane, thereby encouraging women in the unenviable position of needing surrogacy to undertake such arrangements in the UK.
 S2A, SAA 1985
 Livingston v Rawyards Coal Co (1880) 5 App Cas 25, per Lord Blackburn at 39
 Section 2(1), Surrogacy Arrangements Act 1985
 I do not address this last point any further, as the Supreme Court held that Patel and the law of illegality was of no relevance to the matters in dispute: see para 40,  UKSC 14.
 Para 44,  UKSC 14.
 Human Fertilisation & Embryology Authority
 Lady Hale, Lord Kerr and Lord Wilson.
 Building families though surrogacy: a new law, June 2019, Law Commission.
 Para 51,  UKSC 14.
 Para 53,  UKSC 14.
Written by Juliet Stevens.