On appeal from: [2018] EWCA Civ 2832

The claimant in this case had a number of cervical smear tests carried out. Each test was negligently reported to the effect that the hospital failed to detect her cervical cancer, leaving her infertile. Before having chemo-radiotheraphy, the claimant had 8 eggs collected and frozen. She sought to have four children and her preference was for surrogacy arrangements in California on a commercial basis. The present appeal concerned the damages payable for the loss of her ability to have her own child. The High Court had dismissed the claimant’s claim for commercial surrogacy in California as contrary to public policy, and held that surrogacy using donor eggs was not restorative of the claimant’s fertility but allowed damags for own-egg surrogacies in the UK. The Court of Appeal found in favour of the claimant. The hospital appealed to the Supreme Court.

By a majority, the Supreme Court dismissed the appeal. Lady Hale, delivering majority judgment for the court, held that Briody was not binding on the court, and its persuasiveness is affected by subsequent developments in the law as well as social attitudes relating to surrogacy. Lady Hale stated that the chances of a successful outcome in the present case were reasonable. As for the restorative function of damages, it was held that the view expressed in Briody that damages for donor- egg surrogacy arrangements could not be recovered as they were not restorative of what the claimant had lost, was probably wrong then and is wrong now. As long as the arrangement has reasonable prospects of success, damages for the reasonable costs of it may be awarded.

It was held  that awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the 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.

For judgment, please download: [2020] UKSC 14

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website 16 December 2019 morning session and afternoon session and 17 December 2019 morning session.