XX v Whittington Hospital NHS Trust

The Court of Appeal allowed the appellant's appeal against the High Court's refusal to award the full costs of surrogacy arrangements. Applying the test in Patel v Mirza, the court held that the Surrogacy Arrangements Act 1985 does not require a public policy bar to recovery of damages for surrogacy costs incurred lawfully abroad and that the modern statutory and social context (including reforms under the Human Fertilisation and Embryology Acts and subsequent jurisprudence) supports a more nuanced illegality analysis. The court held that lawful surrogacy expenses may be recoverable if they are reasonable and restorative of the claimant's loss; it followed the judge below in allowing recovery for lawful UK "own egg" surrogacy but departed from earlier dicta in Briody v St Helens and Knowsley Area Health Authority to permit recovery for donor-egg surrogacy and for arrangements carried out lawfully abroad where appropriate. The judgment also addressed assessment of general damages (PSLA) and reduced the global PSLA award to reflect matters removed from the original assessment.

Background and parties: The appellant (Ms X) sued Whittington Hospital NHS Trust for admitted negligence in failing to detect cervical cancer, which led to chemo-radiotherapy and permanent infertility. She sought damages to meet the costs of surrogacy arrangements (initially envisaged in California and alternatively in the UK), using either her own cryopreserved eggs or, if necessary, donor eggs.

Relief sought: Compensation for surrogacy expenses (Californian commercial surrogacy or UK non-commercial surrogacy), together with general damages for pain, suffering and loss of amenity (PSLA).

Issues framed:

• Whether damages could be awarded for costs of commercial surrogacy carried out lawfully abroad (California) despite commercial surrogacy being criminalised in part in the UK;
• Whether damages could be awarded for surrogacy using donor eggs as restorative compensation, or whether recovery should be confined to "own egg" procedures;
• Whether any award for surrogacy expenses should affect the level of PSLA.

Procedural posture: Appeal from Sir Robert Nelson sitting in the Queen's Bench Division (High Court) whose assessment awarded damages limited to UK non-commercial surrogacy using the claimant's own eggs and £160,000 for PSLA. The High Court had refused damages for Californian commercial surrogacy and for donor-egg surrogacy following the Court of Appeal decision in Briody.

Court's reasoning and outcome: The Court of Appeal (McCombe LJ, King LJ and Nicola Davies LJ) concluded that the modern illegality/public policy analysis in Patel v Mirza required reconsideration of the effect of the Surrogacy Arrangements Act 1985 and related legislation. The court held that SAA s.2 is principally directed at commercial surrogacy businesses in the United Kingdom and does not have an extraterritorial effect barring recovery of reasonable surrogacy expenses lawfully incurred abroad. The Human Fertilisation and Embryology Acts and subsequent case law (including decisions authorising retrospective payments in parental order proceedings) demonstrate a changed statutory and social context. Applying Patel's structured approach, the court found no public policy reason to bar recovery where the claimant proposes to act lawfully abroad, and where the expenses claimed are reasonable and restorative. The court therefore allowed the appeal, declined to follow the restrictive dicta in Briody as to donor-egg surrogacy, and held that donor-egg and own-egg surrogacy costs can be recoverable if they meet the restorative and reasonableness criteria. The court also addressed the PSLA award, reducing the global figure to reflect matters excluded from the earlier assessment.

Wider context: The court emphasised caution in future cases; awards must be justified on evidence of reasonableness and prospects of success and assessed case by case. Changes in statute and social attitudes do not mean automatic entitlement to extensive surrogacy funding; proportionality and coherence in the law remain guiding principles.

Appeal allowed. The Court of Appeal held that recovery of reasonable surrogacy expenses is not automatically barred by public policy or illegality where the proposed arrangements are lawful where carried out and where the award would be restorative; the Surrogacy Arrangements Act 1985 was interpreted as focused on domestic commercial activity and not intended to have extraterritorial effect, and Patel v Mirza requires a principled, proportionate assessment rather than an automatic bar. The court also held that donor-egg surrogacy may be recoverable as restorative compensation in appropriate cases. The PSLA award was adjusted by the court below's reasons and the parties were to revise itemised special damages accordingly.

Appeal from the High Court of Justice, Queen's Bench Division (Sir Robert Nelson) (assessment of damages) ([2017] EWHC 2318 (QB), HQ15C04535). The appeal was heard and determined by the Court of Appeal, Civil Division, [2018] EWCA Civ 2832.