Surrogacy costs – discussion of case law and recent Supreme Court case of Whittington Hospital NHS Trust v XX

On 1 April 2020, the Supreme Court handed down Judgment in the case of Whittington Hospital NHS Trust v XX [2020] regarding, amongst other issues, the recoverability of damages to cover the costs of a commercial surrogacy arrangement abroad. This article sets out the decision and considers how changing social attitudes as to what constitutes a familial unit may have impacted.

The facts

The claim concerned a delay in diagnosis of cervical cancer due to the incorrect reporting of cervical smear tests in 2008 and 2012 and cervical biopsies in 2012. Liability was admitted. By the time the Claimant was diagnosed, the cancer was too far advanced for surgical intervention to be an option and she therefore underwent chemo-radiotherapy. As the Claimant was only young, before having the treatment, she had eight eggs collected and frozen.

The damages claimed included the costs of a commercial surrogacy arrangement in California to allow the Claimant and her partner to have four children. It was proposed that two pregnancies would use the Claimant own eggs and two pregnancies would use donor eggs. The Claimant wished to use a commercial arrangement due to the uncertainties of other options present. In California, in commercial arrangements the law allows the Courts to declare a child’s parentage prior to the birth of that child without the need to involve the Courts unlike non-commercial arrangements in the UK where a parental order can only be obtained through the Courts. This process cannot even be started until six weeks after the baby is born. Until then, the surrogate remains that baby’s legal mother and can of course decide to keep the baby. Some would argue that the California system affords more certainty to prospective parents.

It is important to note at this stage that whilst fee-paying arrangements are unlawful in the UK, prospective parents are not prevented from entering into commercial agreements abroad where such arrangements are legal. In the UK, surrogacy is permitted but only reasonable expenses can be paid.

At first instance the Judge held that, following Briody v St Helen’s & Knowsley Area Health Authority [2002] the claim for commercial surrogacy must fail. Damages were however, awarded for two own-egg surrogacies in the UK.

The Claimant appealed and the Hospital also cross-appealed against the award for the two own-egg surrogacies. The case reached the Supreme Court earlier this year.

The issues to be decided

The Judgment highlights that the Court had three main issues to consider:

• Can damages to fund surrogacy arrangements using the Claimant’s own eggs be recovered?
• If so, can damages to fund arrangements using donor eggs be recovered?
• Can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?

The decision

Before considering the decision in Whittington it is worth giving some background to the Briody Judgment. In that case, the Claimant was aged 19 when she underwent a sub-total hysterectomy. Just as in the Whittington case, the Claimant wanted to use a commercial surrogacy arrangement in California.

The proposal was rejected by the Court at first instance. This was based on two factors namely the chances of success using the Claimant’s own eggs (which were very low) and the fact that commercial surrogacy was unlawful in the UK. Once the case reached the Court of Appeal, whilst the Claimant’s own eggs had been successfully fertilised, the chances of success were still no more than 1%.

It was Lady Hale who gave the lead Judgment in Briody. In relation to the proposals for a Californian surrogacy arrangement, she found that they were “contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it”. She also made reference to the very low chance of success should the Claimant’s own eggs be used. She went on to find that surrogacy using donor eggs would not be “in any sense restorative of Ms Briody’s position… 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”.

In Whittington Lady Hale again gave the lead Judgment making clear reference to changes in law and social attitudes when determining that the Court should not be bound by Briody. As the Claimant was not proposing to do anything illegal as the commercial arrangements proposed would be abroad, normal principles applied to the recoverability of damages i.e. the damages should put the Claimant back in the position she would have been in absent the admitted negligence.

Taking each issue individually:

1. Can damages to fund surrogacy arrangements using the Claimant’s own eggs be recovered?

Lady Hale considered the recoverability here depended on the chances of success. Based on the evidence before the Court, the chances of a successful surrogate pregnancy using the Claimant’s own eggs was reasonable, unlike the very low chances of success in Briody. Damages were therefore recoverable.

2. If so, can damages to fund arrangements using donor eggs be recovered?

Lady Hale made reference back to her own comments from Briody. She disagreed with the decision reached that a pregnancy via such means would not give the Claimant back what she had lost as the child and the pregnancy would not be her own. Lady Hale again made reference to changing social attitudes towards both surrogacy and family life.

3. Can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?

Lady Hale considered that it was no longer contrary to public policy to allow damages for such arrangements subject to certain factors which mainly focus on the safeguarding of the child. It should be noted that she was clear that UK Courts will not enforce such contracts but she did not consider this prevented the award of damages.

Comment

This is an extremely interesting decision not least given Lady Hale’s leading Judgment in both this and the previous leading case of Briody. There is a clear demonstration that changing social attitudes will be taken into consideration by the Court when they are being asked to apply what many may consider to be outdated decisions and opinions.

Society has come a long way in the 20 years since the decision in Briody. What society accepts as a familial unit and how that is achieved has come on leaps and bounds. The Court in Whittington clearly appear to have accepted that simply because a mother does not carry a child or even if she is not biologically related to that child, this does not prevent her from being a mother and a family unit being established. What the Claimants sought in each case was a family with children in a world and a society that both allows and accepts a variety of pathways to achieve that goal.  It surely follows that damages should be recoverable if it allows a Claimant to achieve that final goal where otherwise the opportunity would have been taken away.

The case also raises the question of whether the law in the UK should be changed to a reflect changing social attitudes. The use of surrogacy is becoming more prominent and an accepted way of building a family which has been recognised by the Department of Health and Social Care in its guidance on surrogacy arrangements. The Law Commission carried out a consultation on various proposed reforms between June – November 2019 and expect to produce a final report with their recommendations for reform of the law, and a draft Bill, in early 2022.