Should surrogacy arrangement illegal in UK be recoverable in damages? XX v Whittington Hospital NHS Trust (Court of Appeal,19 December 2018)

Introduction

This ruling dealt with the issue of whether or not the expenses of a commercial surrogacy arrangement in the state of California, USA, which was legal there but illegal in the UK, should be recoverable in damages in England in a clinical negligence case. The trial judge had refused to award damages on that basis, and the claimant appealed.

Facts

The claimant, whose name is anonymised by order of the court, was in her late 20s when the Trust delayed in diagnosing her cancer. Negligence was admitted and the case therefore proceeded on quantum alone.

When she was 29, XX was eventually diagnosed as suffering from cervical cancer. Because of the delay she was unable to have fertility-saving surgery, which otherwise would have been available to her. As a consequence of the necessary chemo-radiotherapy treatment, she suffered severe radiation damage to her bladder, bowel and vagina, which led to infertility.

She had a strong ambition to found her own family and to bring up four children. She therefore postponed treatment for her cancer in order to take second and third opinions on whether her fertility could, after all, be saved. Those opinions were both negative, and therefore prior to treatment she underwent a cycle of ovarian stimulation and egg harvest, which produced 12 eggs that were cryopreserved.

XX came from a large family and it was the joint wish of her and her partner to have their own biological children by surrogacy. They wished to have this carried out in California, chiefly because in that state commercial surrogacy agreements are lawful, binding on the parties, and the intending parents can obtain a pre-birth order from a court confirming their legal status as parents of the expected child. In the United Kingdom, by contrast, commercial surrogacy arrangements are unlawful and it is a criminal offence to advertise either for a surrogate or to offer oneself as a surrogate. Non-commercial surrogacy is permitted in the UK, but only reasonable expenses may be paid to the surrogate mother. Furthermore, the surrogate is the legal mother of the child and can refuse to give up the baby to the intending parents.

English law

In 2002, the Court of Appeal had held in Briody v St Helens and Knowsley Area Health Authority [2002] QB 856 in a relatively similar case that a claim for the expenses of Californian surrogacy must fail because it would be contrary to public policy for recovery of such damages to be allowed in England. The trial judge in the present case (Sir Robert Nelson) held that he was bound by that decision, and therefore awarded damages only for reasonable expenses in the UK and not the full cost of commercial surrogacy in California.

It was argued on behalf of XX that the legal climate had changed in England since 2002. Attitudes had shifted and XX was not committing an offence in England by arranging commercial surrogacy in California.

Decision

The Court of Appeal was sympathetic to these arguments. It observed that in Briody’s case, the chances of a live birth by using surrogacy were less than 1%. In the present claim, however, the prospects of success were much higher. Furthermore, Parliament had permitted the family courts to sanction overseas surrogacy arrangements by way of “parental orders”, including the sanction of payments made in the context of such arrangements. In one case in 2014, a family judge had made an order in favour of an application in respect of a surrogate birth where nearly $95,000 had been paid by the applicants to achieve the intended result.

The concept of “public policy” was well recognised to be variable. The court concluded that barring recovery to XX would prevent the full recovery of damages such as to restore her personal autonomy in being able to found a family. In an old decision (Saxby v Fulton [1909] 2 KB 208), the court had allowed recovery of monies lent in a foreign country for the purpose of gaming. That activity was lawful in the country in question, although recovery of a gaming debt was illegal in England.

For the above reasons, the Court of Appeal held that it was appropriate to award XX the full cost of a commercial surrogacy arrangement in California. It also concluded, on a supplementary point, that there should be no distinction in recoverability between cases using the woman’s own eggs (as here) and cases where eggs from another donor are used. It did, however, add that this ruling should not be intended to imply that a court will always be willing to permit such extensive surrogacy claims. The reasonableness of the proposed arrangement will have to be proved in every case

Christopher Johnson QC and Claire Watson (Instructed by Irwin Mitchell) appeared for XX.

Comment

This was an extremely sad case where a young woman was deprived of the chance of bearing her own children as a consequence of the Trust’s admitted negligence. Everyone involved in the case was sympathetic to her plight. However, it is arguably curious that the second highest court in England has allowed recoverability of damages in relation to a contractual arrangement which is illegal in England. Admittedly, XX was not committing any criminal offence in England by arranging such a contract in the United States. Nevertheless, this ruling is surprising and the Trust is petitioning the Supreme Court for permission to appeal further.

Learning points

It is not in dispute that reasonable expenses of a non-commercial surrogacy arrangement are recoverable in damages in appropriate cases.