XX v Whittington Hospital NHS Trust

In a tort claim, the fact that commercial surrogacy is prohibited in the United Kingdom does not necessarily bar recovery of reasonable expenses for a lawful arrangement abroad. Illegality must be assessed by examining the purpose of the prohibition, other relevant public policies and proportionality.

Damages are restorative so far as possible. Where the prospects of success are reasonable, expenses of lawful surrogacy may be recoverable whether the arrangement uses the claimant’s own eggs or donor eggs. A distinction between those procedures may be artificial where both are directed to enabling the claimant to found her intended family.

The claimant suffered cervical cancer, infertility and serious radiation injuries after the Hospital negligently failed to detect cancer. On assessment of damages, Sir Robert Nelson allowed £74,000 for two UK surrogacies using the claimant’s own eggs, but rejected Californian commercial surrogacy and donor-egg surrogacy costs. He awarded £160,000 for pain, suffering and loss of amenity. The claimant appealed, and the Hospital cross-appealed. The central issues were whether public policy barred recovery for lawful Californian surrogacy, whether donor-egg surrogacy could be restorative, and whether the general damages award required adjustment.

The Court of Appeal allowed the claimant’s appeal and dismissed the Hospital’s cross-appeal except to the extent that the general damages award required adjustment.

1. Illegality and public policy. The modern approach requires consideration of the purpose of the prohibition, other relevant public policies and proportionality, following the framework in Patel v Mirza [2016] UKSC 42. The surviving prohibition in the Surrogacy Arrangements Act 1985 principally targets commercial surrogacy businesses and related conduct in the United Kingdom. It did not target the claimant’s proposed lawful conduct in California. Refusing damages would not advance the statutory purpose, would impair her personal autonomy and would be disproportionate. Section 1A of the Act prevented enforcement of the surrogacy agreement, but the claim was for tort damages, not enforcement.
2. Effect of Briody. The two limbs of Briody v St Helens and Knowsley Area Health Authority [2002] QB 856 were treated as parts of its ratio. The Court no longer accepted that public policy required a bar to damages for lawful foreign commercial surrogacy. The low prospects of success in Briody did not prevent recovery where the evidence in the present case showed materially better prospects. The Court also declined to follow the dicta in Briody that donor-egg treatment was not restorative.
3. Restorative compensation. Applying the principle in Livingstone v Rawyards Coal Co. (1880) App. Cas. 25, damages should place the claimant as nearly as possible in the position she would have occupied without the tort. The own-egg and donor-egg distinction was artificial. Reasonable expenses for both forms of surrogacy were therefore recoverable, whether incurred in the United Kingdom or California.
4. Limits and PSLA. The decision did not establish that every extensive surrogacy plan would be recoverable. The reasonableness of the proposed number of pregnancies, medical steps and expenditure must be proved in each case. The claimant’s PSLA award of £145,000 for her injuries was upheld. Taking account of the risk of failure in the surrogacy procedures, the total general damages award was reduced from £160,000 to £150,000.

• Court of Appeal (Civil Division) On 19 December 2018, the claimant’s appeal was allowed. The Hospital’s cross-appeal was dismissed except that the PSLA award was reduced to £150,000.
• High Court of Justice, Queen’s Bench Division Sir Robert Nelson assessed damages in [2017] EWHC 2318 (QB), allowing limited UK own-egg surrogacy costs but rejecting Californian and donor-egg surrogacy costs.