Whittington Hospital NHS Trust v XX

The Supreme Court considered the measure of damages in a medical negligence case where the claimant had been wrongfully deprived of her ability to bear children. The central legal questions were whether damages could include the reasonable costs of (i) surrogacy using the claimant's own eggs, (ii) surrogacy using donor eggs, and (iii) commercial surrogacy abroad in a jurisdiction where it is lawful. The Court held that, subject to the usual principles governing awards in tort, damages can be awarded to fund surrogacy using the claimant's own eggs and can also, subject to reasonable prospects of success, include surrogacy using donor eggs. The majority further held that it is not necessarily contrary to public policy to award damages to meet the costs of foreign commercial surrogacy, but such awards are limited by three important constraints: the proposed programme must be reasonable; it must be reasonable to seek arrangements abroad rather than domestically (taking into account the regulatory safeguards in the foreign jurisdiction); and the costs claimed must themselves be reasonable.

Background and facts. The claimant suffered delayed and misreported cervical pathology leading to advanced cervical cancer; treatment removed her ability to carry children. Liability for the negligent misreporting of several cervical tests and biopsies was admitted. The claimant froze eggs before treatment and sought damages to fund surrogacy arrangements to enable her to have children. She preferred commercial surrogacy in California but would accept non-commercial UK surrogacy if foreign commercial arrangements were not funded.

Procedural posture. Liability was admitted and damages were assessed in the High Court by Sir Robert Nelson ([2017] EWHC 2318 (QB)), who declined to award sums for commercial foreign surrogacy and for donor-egg surrogacy, applying the Court of Appeal decision in Briody v St Helen's. The Court of Appeal ([2018] EWCA Civ 2832) allowed the claimant's appeal and held that public policy had evolved, permitting awards for donor-egg surrogacy and for commercial foreign surrogacy in principle. The hospital appealed to the Supreme Court.

Issues framed. (i) Whether damages may fund surrogacy arrangements using the claimant's own eggs; (ii) whether damages may fund surrogacy using donor eggs; and (iii) whether damages may fund commercial surrogacy abroad where lawful there.

Reasoning and holdings. The Court emphasised the general compensatory principle that damages should, so far as possible, put the claimant in the position she would have been in but for the tort, subject to recognised legal and public policy limits (Livingstone v Rawyards). Applying that principle and having regard to changes since Briody, the majority (Lady Hale et al.) concluded that: (a) damages for reasonable surrogacy using the claimant's own eggs are recoverable where prospects and reasonableness are satisfied; (b) donor-egg surrogacy can be restorative in the relevant sense and is therefore, subject to reasonable prospects of success, recoverable; and (c) foreign commercial surrogacy is not inevitably contrary to public policy and may be funded by damages in appropriate cases, but only if the treatment programme is reasonable, the choice of a foreign commercial route over UK alternatives is reasonable given the safeguarding regime in the foreign jurisdiction, and the amounts claimed are reasonable. The Court therefore dismissed the hospital's appeal, subject to the caveats indicated. Lord Carnwath dissented on the third issue, favouring continued consistency with Briody and the domestic prohibition on commercial surrogacy agencies.

The appeal by Whittington Hospital NHS Trust was dismissed. The Supreme Court (majority) held that damages in tort may include the reasonable costs of surrogacy using the claimant's own eggs and, subject to reasonable prospects of success, surrogacy using donor eggs. Further, damages to meet the cost of foreign commercial surrogacy are not automatically barred by public policy; they may be awarded in appropriate cases but only where the proposed treatment programme is reasonable, it is reasonable to seek foreign commercial arrangements rather than UK options (having regard to the safeguarding and regulation in the foreign jurisdiction), and the costs claimed are reasonable. Lord Carnwath dissented on the third issue, considering such awards inconsistent with domestic legal policy as reflected in Briody and the Surrogacy Arrangements Act 1985.

Liability admitted and damages assessed in the High Court: Sir Robert Nelson, [2017] EWHC 2318 (QB). The claimant's appeal was allowed by the Court of Appeal: [2018] EWCA Civ 2832. The defendant hospital appealed to the Supreme Court: [2020] UKSC 14 (this judgment).