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Damages for recovery of the costs of surrogacyglasson

On 1 April 2020, Lord Reed announced by video link the Supreme Court’s decision in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, on appeal from [2018] EWCA Civ 2832. The judgment is available here.

The Facts

As a consequence of the admitted negligence of the Whittington Hospital in failing to detect signs of cancer, the claimant developed cancer of the cervix for which she required chemoradiotherapy treatment that led to infertility.   The claimant decided to have their own biological children by surrogacy. The experts for the parties agreed that on the balance of probabilities the claimant would achieve two live births from her 12 cryopreserved eggs. If her cryopreserved eggs do not result in 3-4 children, the claimant intends to use donor eggs. Her first choice of surrogacy is California, primarily because surrogacy is lawful and binding there. She claimed damages in respect of the expenses of four pregnancies either in California or the UK using her own eggs and, if necessary, donor eggs.

In the High Court, Sir Robert Nelson concluded that the claim for California surrogacy expenses had to fail because he was bound by Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2002] QB 856 on this issue – a case in which Hale LJ (as then was) gave the lead judgment. Sir Robert Nelson viewed the claim relating to the UK surrogacy to be different as it is not illegal nor contrary to public policy to use an agency to find a surrogate mother. However, he drew a distinction between the use of a mother’s own eggs, which was capable of attracting an award, and the use of donor eggs, which was not. He therefore limited the claim to the cost of two surrogacies in the UK, using the claimant’s own eggs. 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 dismissed the cross-appeal and allowed the appeal on both points.

The hospital appealed to the Supreme Court.

The Issues in the Appeal

There were three principal issues raised by the appeal:

i. First, can damages to fund surrogacy arrangements using the claimant’s own eggs be recovered?

ii. Second, if so, can damages to fund arrangements using donor eggs be recovered?

iii. Third, in either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?

The Supreme Court’s Decision:

The Supreme Court dismissed the NHS Trust’s appeal, unanimously finding for Ms X in relation to the first two issues and, by a 3:2 majority, for her on the third issue. Lady Hale gives the majority judgment, with which Lord Kerr and Lord Wilson agreed. Lord Carnwath gives a judgment dissenting on the third issue, with which Lord Reed agreed.

The majority

In her judgment Lady Hale considered the developments that had taken place since the decision in Briody and the current state of the law in relation to surrogacy. Describing UK law on surrogacy as “fragmented and in some ways obscure”, she reviewed the “quite dramatic” developments in the law that had taken place since Briody. Under the Surrogacy Arrangements Act 1985, originally all third parties were banned from taking part in surrogacy arrangements for payment, whereas under the 2008 Act amendments, non-profit-making bodies may initiate negotiations and compile information for reasonable payment. Nonprofit-making bodies can also advertise. There are now three not-for-profit organisations facilitating surrogacy arrangements in the UK, COTS, Brilliant Beginnings and Surrogacy UK. However, “more dramatic still”, said Lady Hale, “have been the developments in the law’s idea of what constitutes a family”.   She endorsed King LJ’s observation in the Court of Appeal in this case:

“It is unnecessary to resort to statistics or research in order to appreciate the social changes in the years since Briody. These changes have led to the current acceptance of an infinite variety of forms of family life of which single sex, single person and so called ‘blended families’ are but examples. The creation of these families is often facilitated consequent upon the advances in fertility treatment including the acceptance of and increased use of donor eggs.”

Against that backdrop, Lady Hale concluded that the law permitted damages for the cost of surrogacy arrangements using the claimant’s own eggs made on a lawful basis in this country. She noted

“Sir Robert Nelson found it difficult to see why, on general principle, where the prospects of success are reasonable, if not good, and the claimant had delayed her cancer treatment to ensure that her eggs were harvested, the claim should not succeed (para 49). McCombe LJ agreed (para 84). So do I.”

In relation to claiming the costs for UK surrogacy arrangements using donor eggs, Lady Hale robustly departed from the views that she had expressed in Briody:

“In Briody, I expressed the view that this was not truly restorative of what the claimant had lost. It was seeking to make up for what she had lost by giving her something different (para 25). We need not concern ourselves with whether or not this view was technically obiter. In my view it was probably wrong then and is certainly wrong now.”

That left however what she described as the most difficult question: the costs of foreign commercial surrogacy. UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents’ child from birth. Lady Hale therefore concluded that awards of damages for foreign commercial surrogacy are no longer contrary to public policy. She entered a number of caveats to that conclusion which would limit the availability and extent of such awards. Costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, including the child, are properly safeguarded

The dissenting judgment

Lord Carnwath disagreed with the majority on the third issue. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Society’s approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. In Lord Carnwath’s view, it would not be consistent with “legal coherence” to allow damages to be awarded on a different basis. Lord Carnwath said that “the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony” quoting McLachlin J in Hall v Hebert [1993] 2 SCR 15, 175-176.

 

Jonathan Glasson acted for Mrs Briody in the Court of Appeal case, led by Stephen Irwin QC (now Irwin LJ)