Surrogacy: The birth of a new head of loss

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)

In recent years, there has been an increase in the prevalence and social acceptance of surrogacy arrangements in the UK. However, until judgment was handed down in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), there were no reported cases in which a claimant successfully recovered damages for the cost of surrogacy.

In the first decision of its kind, Sir Robert Nelson awarded £74,000 to the Claimant in respect of the cost of UK-based surrogacy for two children, using the Claimant’s own eggs. Claire Watson represented the Claimant in this significant case.

This was a quantum-only clinical negligence trial. The Defendant admitted negligence in failing to detect signs of cancer from smear tests. Consequently, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment, which led to infertility and severe radiation damage to her bladder, bowel and vagina [1].

The Claimant sought damages for, inter alia, the expense of four pregnancies under a commercial surrogacy arrangement in California or, alternatively, under a non-commercial surrogacy arrangement in the UK. In either case, she would primarily seek to use her own eggs. Importantly, it was agreed by the experts in reproductive medicine that the Claimant will probably achieve two live births [34].

Three aspects of Sir Robert Nelson’s judgment are worth noting.

First, his Lordship considered himself bound by the judgment of Lady Justice Hale in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2002] QB 856 (the only other case in which this head of loss was considered), insofar as commercial surrogacy arrangements are considered to be contrary to public policy. It did not matter whether the agreement itself was made in California; as an unlawful contractual arrangement in the UK, it could not form the basis for a head of loss [45].

Secondly, Sir Robert Nelson did not similarly feel bound to follow Lady Justice Hale’s ‘tentative view’ that, where a claimant wishes to make a surrogacy arrangement using her own eggs and there was a reasonable chance of a child being achieved as a result, such a case was still ‘a step too far’. In XX, two live births were likely, whereas there was only a 1% chance of live birth in Briody. Sir Robert Nelson therefore found it –

difficult to see why, both on general principle, and based upon Lady Justice Hale’s own view, such a case should not be “capable of attracting an award”, and why the claim relating to the UK should not succeed.’ [49]

In deciding this, Sir Robert Nelson made it clear that he would reject a claim based on the use of donor eggs for the same reasons as Lady Justice Hale in Briody, namely that the loss that the Claimant sustained was the ‘inability to have her child, not a child. The use of donor eggs is not therefore restorative of her loss’ [50].

Thirdly, Sir Robert Nelson indicated that the highest court in the land may have a role to play in reshaping the legal position on commercial surrogacy:

Ms. Watson and Ms. Ghevaert may be right in saying that attitudes have changed and are indeed changing in relation to surrogacy but such change must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court.’ [48]

Thus, whilst the High Court’s judgment in XX has only set a precedent for claiming damages for UK-based non-commercial surrogacy, further developments in this area of law have not been completely ruled out. One could perhaps interpret Sir Robert Nelson’s comments at [48] as words of encouragement.