Whittington Hospital NHS Trust v XX

Damages for negligently caused loss of fertility may include the reasonable cost of surrogacy. UK arrangements may use the claimant’s own eggs or donor eggs, provided there are reasonable prospects of success. Donor-egg surrogacy can restore important elements of the opportunity to found and bring up a family.

Foreign commercial surrogacy costs are not inherently irrecoverable on public-policy grounds. Recovery requires a reasonable proposed programme, a reasonable choice of foreign rather than UK arrangements, adequate safeguards for the surrogate, commissioning parents and child, and reasonable costs. Awards should not fund exploitative or unregulated systems.

The hospital negligently failed to detect the claimant’s cervical cancer. Later treatment saved her life but destroyed her ability to bear children. She had eight mature eggs stored and sought damages for four surrogacies, preferably through commercial arrangements in California. Two would use her eggs and two donor eggs.

The High Court awarded £74,000 for two non-commercial UK surrogacies using her eggs but rejected donor-egg and Californian commercial surrogacy: [2017] EWHC 2318 (QB). The Court of Appeal allowed the claimant’s appeal and dismissed the hospital’s cross-appeal: [2018] EWCA Civ 2832.

The Supreme Court considered whether damages could fund own-egg surrogacy, donor-egg surrogacy and lawful foreign commercial surrogacy.

By a majority of three to two, the appeal was dismissed. Lady Hale gave the majority judgment, with which Lord Kerr and Lord Wilson agreed. Lord Carnwath, with whom Lord Reed agreed, dissented only on foreign commercial surrogacy.

1. The governing compensatory principle seeks, so far as money can, to place the claimant in the position she would have occupied absent the tort. It is qualified where recovery would offend legal or public policy and by the requirements that the restorative steps and their cost be reasonable.

2. Reasonable UK surrogacy costs using the claimant’s own eggs are recoverable where the prospects of success are reasonable. Assisted reproduction is accepted and widely used. It could no longer be argued that damages should never facilitate the birth of a child who would otherwise not have been born. The contrary tentative approach in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010 did not prevent recovery.

3. Reasonable UK surrogacy costs using donor eggs are also recoverable, subject to reasonable prospects of success. Lady Hale disapproved her earlier view in Briody that donor-egg surrogacy was not restorative. Such an arrangement preserves important aspects of the lost opportunity, including perpetuating the partner’s genes and bringing up a child as one’s own. Developments in family law and social understanding reinforced that conclusion.

4. It was no longer contrary to public policy to award the cost of lawful foreign commercial surrogacy. UK law does not criminalise commissioning parents or surrogates for making such arrangements. Courts commonly authorise payments retrospectively when determining parental-order applications, with the child’s welfare paramount. Legal and social developments since Briody, including support for properly regulated surrogacy, justified departure from its contrary rule.

5. Recovery remains limited. The proposed number and programme of treatments must be reasonable. Resort to foreign commercial arrangements rather than UK arrangements must also be reasonable. The foreign system must properly safeguard the surrogate, commissioning parents and child; damages should not fund unregulated or exploitative systems. The amount claimed must itself be reasonable.

6. Lord Carnwath would have allowed the appeal on the third issue. In his view, legal coherence precluded a civil award funding conduct which, if undertaken domestically by an agency, would offend the criminal law. Parliament had not altered the critical prohibitions against commercial surrogacy agencies.

1. United Kingdom Supreme Court: By a three-to-two majority, dismissed the hospital’s appeal and upheld recovery in principle for reasonable own-egg, donor-egg and lawful foreign commercial surrogacy costs: [2020] UKSC 14 .
2. Court of Appeal: Allowed the claimant’s appeal concerning donor-egg and Californian commercial surrogacy, and dismissed the hospital’s cross-appeal concerning own-egg surrogacy: [2018] EWCA Civ 2832 .
3. High Court: Awarded £74,000 for two non-commercial UK surrogacies using the claimant’s eggs, but rejected donor-egg and Californian commercial surrogacy: [2017] EWHC 2318 (QB) .