Commercial surrogacy expenses

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

The claimant brought a claim against the defendant NHS Trust for admitted negligence in failing to detect signs of cancer for which she required chemo-radiotherapy treatment, which in turn led to infertility and severe radiation damage to her bladder, bowel and vagina. 

She appealed against the trial judge’s decision on three issues: a) whether she could recover the expenses of commercial surrogacy arrangements in California; b) whether the trial judge was correct to differentiate between ‘own egg’ and ‘donor egg’ surrogacies; and c) whether there should be any reduction in the damages awarded for pain, suffering and loss of amenity (PSLA) consequent on the decision in a) and b). 

Non-commercial surrogacy

The defendant cross-appealed. It sought to reverse the judge’s award of damages in respect of the costs of limited, non-commercial surrogacy in this country, or alternatively that the trial judge should not have awarded general damages which reflected Ms X’s complete infertility. 

In the Court of Appeal, McCombe LJ (with whom King LJ and Davies LJ agreed) said that surrogacy was lawful in California and consequently commercial surrogacy agreements were binding on the parties to them. However, in the UK, under the Surrogacy Arrangements Act 1985, commercial surrogacy arrangements were unlawful and impossible to enforce. The act permitted limited, non-commercial surrogacy, but only reasonable expenses could be paid to the surrogate mother. The trial had made a limited award to that effect but he had confined the claimant’s claim to the use of her own eggs, following the decision of the Court of Appeal in Briody v St Helens and Knowsley Area Health Authority [2002] QB 856. The reasoning was that the loss suffered by the injured mother/claimant was the inability to have her child, not a child. Consequently, the use of donor eggs would not be ‘restorative’ of her loss. 

McCombe LJ considered the decision in Briody. The appeal court had said that the surrogacy arrangements put forward as a claim by the claimant in that case were contrary to public policy, which was clearly established in legislation. However, the law of illegality, as a bar to a civil claim had changed since the decision of the UK Supreme Court in Patel v Mirza [2016] UKSC 42. The question was now whether that perception of public policy barring the remedy should be the same today as it was at the time of the Briody decision. In Patel, the Supreme Court said that the essential rationale of the illegality doctrine was that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system.

Looking at that decision, McCombe LJ said that firstly the underlying purpose of the prohibition in the 1985 act was to render acts of commercial surrogacy unlawful in the UK. It did not purport to legislate for any country other than the UK and did not prohibit the claimant from doing what she proposed. It could not conceivably be said now that surrogacy as such was contrary to the public policy. Secondly, a bar to recovery here would prevent full recovery of damages such as to restore the claimant’s personal autonomy in being able to found a family. Thirdly, a notional aversion to a lawful act abroad by reference to a prohibition here seemed to be ‘overkill’. 

There was an issue in relation to conflict of laws. McCombe LJ said that case law on enforceability, in this country, of contracts lawful abroad but unlawful had they been made here indicated that such contracts would be enforceable ‘unless inconsistent with the fundamental public policy of English law’. 

Consequently, the law no longer required a bar to recovery of the damages claimed by the claimant on public policy grounds. 

The next issue before the Court of Appeal was whether the trial judge was correct to differentiate between ‘own egg’ and ‘donor egg’ surrogacies. The parties and the judge below had agreed that in Briody the Court of Appeal’s decision on this issue was obiter. McCombe LJ said that the present court would not follow it. Public policy had changed since that case was decided. It was no longer appropriate to discriminate in an award of damages between a child born from own egg surrogacy and one born from donor egg surrogacy. Consequently, a claim for the costs of donor egg surrogacy could be properly seen as ‘restorative compensation’. 

Award of PSLA

Davies LJ (with whom McCombe LJ agreed) dealt with the third issue in the case – the award of PSLA. The trial judge had awarded the global sum of £160,000. His figure took into account the fact that there would be no award for provisional damages for the risk of deterioration in the claimant’s psychological condition (if the surrogacy failed), and there would be no damages in respect of surrogacy in California. He allowed an additional £15,000 to cover these two matters (£145,000 plus £15,000). Davies LJ said that the basic award of £145,000 was unassailable given the seriousness of the claimant’s injuries and their consequences. In relation to the extra £15,000, the claimant conceded that there should be a reduction in the total award of £160,000 now that the court had allowed the claim for surrogacy in California. However, the surrogacy procedures in California carried their own risk of failure, which should be reflected in any award of damages. Accordingly, there should be a reduction in the total award of £160,000 but account should also be taken of the risk of failure in the surrogacy procedures. The appropriate award for general damages was £150,000. 

The defendant’s application for permission to appeal to the UK Supreme Court was refused by the Court of Appeal, although the defendant has the right to take that permission application to the UK Supreme Court itself. McCombe LJ noted that he bore in mind the consequences of any further delay for the claimant. 

Malcolm Johnson is senior solicitor, abuse, at Hudgell Solicitors