The Supreme Court in Whittington Hospital NHS Trust v XX  UKSC 14 has upheld the Court of Appeal’s decision to award damages for Californian commercial surrogacy to an infertile British claimant. Such an award of damages is the first of its kind in the fields of personal injury and clinical negligence.
This is my third blog post on this highly interesting case (see previous posts here and here), which involved admitted negligence on the part of an NHS Trust for misreporting Ms X’s cervical smear tests and cervical biopsies. By the time her cervical smears were correctly reported, Ms X had developed stage IIB cervical cancer. The delay in diagnosis meant that she was unable to undergo fertility-sparing surgery. Having undergone a cycle of ovarian stimulation and egg harvesting, Ms X and her partner wished to have a four-child family; they were prepared to use donor eggs, if necessary.
Following the Trust’s admission of liability, the quantum-only trial in the High Court took place in June 2017 and Ms X’s appeal (along with the Trust’s cross-appeal) was heard in November 2018. Whereas Sir Robert Nelson at first instance only awarded damages for the costs of UK-based surrogacy using Ms X’s own eggs, the Court of Appeal unanimously granted her appeal in allowing her to recover for commercial surrogacy in California using both her own eggs and donor eggs. This was the first case in which such a head of loss was allowed by a court.
That ground-breaking decision has now been upheld by a majority of the Supreme Court, which included Lady Hale. Her involvement in the case (and specifically as the leading member of the majority) is significant for two reasons: first, the Trust sought to rely on her leading judgment in the two-decade-old case of Briody v St Helen’s and Knowsley Area Health Authority  EWCA Civ 1010 and, secondly, it was the last appeal that she ever heard as a Supreme Court Justice.
The appeal and the issues
Relying on Briody, the Trust submitted (as Lady Hale said in that case) that it was ‘a step too far’ for the Court of Appeal to have awarded damages for the costs of even UK altruistic surrogacy, let alone Californian commercial surrogacy. A number of reasons were given, including the apparent offence to public policy and the perceived difficulty in assessing the appropriate award.
Ultimately, there were three issues before the Supreme Court:
- Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
- If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
- In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?
Lady Hale, with whom Lord Kerr and Lord Wilson agreed, answered ‘yes’ to each of these questions in an easy-to-read, concise and reflective judgment. It is well worth reading if you get a chance during the current COVID-19 lockdown. Lord Carnwath and Lord Reed agreed with the majority on the first two issues but answered ‘no’ to the third. I will discuss both the majority and minority judgments.
Issue 1: own-egg surrogacy
Lady Hale recognised that the persuasiveness of Briody was ‘inevitably affected by the developments in law and social attitudes which have taken place since then’. Such developments have been ‘dramatic’, including the amendments to the Surrogacy Arrangements Act 1985, which allow not-for-profit organisations to advertise and be involved in surrogacy negotiations; the equal legal treatment of same sex relationships and parenthood; and the progress of the medicine and science of assisted reproduction [28-35].
Ms X’s primary submission in both the Court of Appeal and the Supreme Court was that her case was ultimately about the assessment of reasonable damages to compensate her for being wrongly deprived of the ability to bear her own children. The Supreme Court accepted that submission. All members of the Court were of the view that the illegality case of Patel v Mirza  UKSC 42,  AC 467 did not assist in such an assessment, nor did the line of cases similar to Gray v Thames Trains Ltd  UKHL 33,  1 AC 1339. The defence of illegality — which was raised at the Court of Appeal stage — was not applicable given that nothing which Ms X proposed to do involved a criminal offence either in the UK or abroad .
Consequently, Lady Hale went ‘back to basics’ in respect of the law of damages. The ‘restitutionary’ principle, as established by the 140-year-old case of Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, is that a claimant should ‘as nearly as possible’ be put back into the position she would have been in but for the tort. One qualification to that is if a head of damage is irrecoverable on the basis of public policy or legal policy, McFarlane v Tayside Health Board  2 AC 59 (the wrongful conception case) being a clear example. The other qualification is reasonableness: ‘in seeking to restore what has been lost, the steps taken must be reasonable ones and the costs thereby incurred must be reasonable’ [41-43].
Having acknowledged that a UK surrogacy arrangement was lawful and damages were recoverable for assisted reproductive techniques, which were now widely accepted and widely used, it is hardly surprising then that Lady Hale agreed with McCombe LJ and Sir Robert Nelson, that it was difficult to see why in principle damages could not be recovered for such surrogacy arrangements. As Lady Hale noted in her analysis of the tentative view she expressed in Briody, there was never a point of general principle or public policy to preclude the recovery of the costs of an own-egg surrogacy arrangement made on a lawful basis in the UK . Whilst she mooted that it was ‘a step too far’ 20 years ago, she did also recognise the contrary argument that it should be capable of attracting an award with the right evidence. In this case, the chances of a successful live birth using Ms X’s own eggs were far greater than the ‘vanishingly small’ chances in Briody. For these reasons, there was no good reason to deny an award for own-egg UK surrogacy.
Issue 2: donor-egg surrogacy
Lady Hale’s view in Briody was that an award of damages for donor-egg UK surrogacy was not truly restorative of what the claimant had lost, in that it would be giving her something different. In a heartening display of intellectual honesty, Lady Hale stated that that view ‘was probably wrong then and is certainly wrong now’ .
The analogy with an artificial limb, whilst not exact, was apt. An amputee can claim for the costs of a prosthesis to replace the limb that they have lost as a result of negligence. Similarly, donor-egg surrogacy would provide Ms X with a womb — albeit temporarily and via a surrogate mother — in circumstances where she is unable to bear her own children. Moreover, using a donor egg, whilst not perpetuating Ms X’s own genes, would still allow her to bring up a child as her own, which is ‘far and away the most important benefit of having children’ [46-47].
Additionally, the ‘dramatic changes in the idea of what constitutes a family which have taken place in recent decades’ reinforced the logic of allowing Ms X to recover for donor-egg surrogacy . As Lady Hale noted earlier in her judgment, legislation enacted between 2002 and 2019 has led to a position whereby ‘[t]he law now recognises and supports same sex relationships and parenthood in almost exactly the same way as it recognises and supports opposite sex relationships’ . The idea of a ‘family’ is no longer automatically tied to the traditional concepts of consanguinity or marriage. Many different types of commissioning parents can now successfully apply for parental orders in respect of children born through surrogacy. As King LJ held in the Court of Appeal, ‘psychologically and emotionally the baby who is born is just as much “their” child as if one of them had carried and given birth to him or her.’
Thus, subject to proving reasonable prospects of successfully conceiving using donor eggs (which Ms X did in this case), damages can be claimed for the reasonable costs of UK surrogacy using donor eggs .
Issue 3: commercial surrogacy abroad
The established case law provides that the courts will not enforce a foreign contract which would be contrary to UK public policy. However, the courts’ facilitating a foreign commercial surrogacy arrangement is different.
Lady Hale carefully looked at the differences between the costs of UK and Californian surrogacy. Many of the items in the Californian arrangement would be claimable if the surrogacy took place in the UK, including :
- The costs of the fertility treatment and egg donation;
- The cost of the payment to the surrogate mother. Whilst this was higher than the ‘reasonable expenses’ allowed in the UK, it is not unlawful for commissioning parents to make such payments here and, in any event, a court would likely retrospectively authorise them; and
- The fees paid to the UK lawyers.
That left the fees paid to the US lawyers and surrogacy agency, which would be unlawful in the UK but not in California. This was not enough to taint all of the items in the bill. It was never the object of the Surrogacy Arrangements Act 1985 to criminalise the surrogate or commissioning parents. The only deterrent is the risk of the courts refusing to retrospectively authorise such payments in a parental order application — but ‘there is no evidence that that has ever been done’ and the courts’ paramount consideration will always be the child’s welfare .
A number of other developments were important to consider: the courts ‘have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy’; the government recently indicated its support for surrogacy; and assisted reproduction is widespread and socially acceptable .
For all of these reasons, Lady Hale considered that it was ‘no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy’ . Having answered ‘yes’ to each question in issue, the Trust’s appeal was dismissed.
The dissenting judgment: McFarlane and ‘legal policy’
It is worth discussing Lord Carnwath’s dissenting judgment, with which Lord Reed agreed. The minority placed reliance on the aforementioned case of McFarlane. That was a case in which the House of Lords held that a couple who had a child after the husband had had a vasectomy, as a result of allegedly negligent advice, could not claim for the costs of bringing up a healthy child. In the later case of Rees v Darlington Memorial Hospital NHS Trust  UKHL 52,  1 AC 309, Lord Bingham’s view was that the judges in McFarlane essentially made their decision ‘for reasons of policy (legal, not public policy)’.
It is interesting to note that Lady Hale, in giving the majority judgment, makes only a passing reference to McFarlane, noting that it serves as an example of the ‘legal or public policy’ qualification to the restitutionary principle of damages as set out in Livingstone . She did not make a particular distinction between ‘legal policy’ and ‘public policy’ at that point but, ultimately, the majority’s view was that there was no policy bar at all to a claim for damages for commercial surrogacy.
Lord Carnwath and Lord Reed, however, were clearly concerned by the notion of distributive justice, and they saw the issue in XX as one of ‘legal policy’ to be determined by the courts. Thus, whether commercial surrogacy was no longer contrary to ‘public policy’ did not resolve the issue for the minority. Lord Carnwath was keen to emphasise, as Lord Millett did in Rees, the importance of maintaining consistency within the legal system (a concept within legal policy rather than public policy). Whilst the dissenting minority agreed that the illegality case law was not directly applicable, ‘the underlying principle of coherence or consistency in the law is of broader application’ . In particular, the objective should be to maintain consistency or coherence ‘between the civil and criminal law within a particular system of law’ .
Thus, Lord Carnwath concluded that, notwithstanding the developments in society’s approach to surrogacy and family life (i.e. the considerations of ‘public policy’), it would be contrary to the principle of consistency ‘for the civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law’ .
However, a key aspect of the majority’s decision on ‘policy’ (whether strictly relevant to ‘legal policy’ or ‘public policy’ or both) was that Ms X was not seeking to do anything which would offend UK criminal law, nor was she seeking to do anything in California which would attract a criminal sanction if done in the UK. The Surrogacy Arrangements Act 1985 does not render unlawful any actions by an intended mother in entering into a commercial surrogacy arrangement. The minority judgment is therefore based on a fictional counterfactual and, in any event, it is difficult to understand how the principle of consistency in the law could actually be violated at all in a case like XX. Moreover, it is clear that the judges of the Family Division, who have invariably made parental orders in favour of commissioning parents involved in foreign commercial surrogacy arrangements, do not consider there to be any inconsistency between the criminal law and the civil law when granting those applications. It will be interesting to see how the differences between ‘legal policy’ and ‘public policy’ are explored in future decisions on damages.
The limiting factors
Despite accepting that an award for foreign commercial surrogacy costs could be made in principle (and in Ms X’s particular case), the majority decision emphasised that this does not mean that such damages will always be awarded.
There will be three important limiting factors :
- The claimant’s proposed programme of treatments must be reasonable. This involves a consideration of whether the proposed number of children is reasonable;
- It must be reasonable for the claimant to seek foreign commercial surrogacy rather than UK surrogacy. If the proposed foreign system is not well-established, not regulated and/or does not have appropriate safeguards, it is unlikely to be reasonable;
- The costs involved in the proposed arrangement must be reasonable.
None of these matters were in issue in Ms X’s case, the Trust not having disputed any of her evidence on these points. However, Lady Hale was keen to stress that ‘it should certainly not be taken for granted that a court would always sanction the sorts of sums of money which have been claimed here.’
The judgment in XX is a welcome reassurance to patients who are left infertile as a result of negligence of any sort. It is also a helpful reminder of the centrality of the principle of ‘reasonableness’ to the assessment of damages in personal injury cases. Whether a particular head of loss is reasonable in principle, and whether the costs claimed thereunder are also reasonable, are familiar considerations faced by clinical negligence practitioners in every single claim.
Factual and expert evidence will be crucial to the success of claims for either UK surrogacy or commercial surrogacy. Defendants will no doubt wish to challenge the claimant’s factual evidence, seek their own expert evidence, and make robust submissions in opposition to such claims, both in counter-schedules and at trial. Claimant lawyers will need to make sure that each and every step in the proposed arrangements is reasonable and that the proposed costs do not skyrocket. Moreover, there will need to be clear evidence of reasonable prospects of successfully achieving live births as a result of the particular arrangement, whether from the claimant’s own eggs or donor eggs. Whilst minimum percentage prospects of success were not discussed in the Supreme Court’s judgment, that is not surprising given that ‘reasonableness’ is not always susceptible to precise mathematical calculation.
Importantly, claimants should not take the positive decision in XX for granted. As in any clinical negligence case, both sides will be able to put forward reasonable arguments and will often need to be prepared to compromise. It should be remembered that, if claims go all the way to trial, courts will be scrutinising surrogacy claims just as carefully as any other head of loss, or potentially even more so given the clear warnings by the Supreme Court. Both sides must bear in mind Lady Hale’s three limiting factors.
As public policy is clearly not a bar to a claim for foreign commercial surrogacy, in which the claimant proposes to commit no crime either in the UK or abroad, it is possible that the decision in XX will lead to claims for damages for emerging, unusual or foreign treatments which may be unlawful in the UK but lawful abroad. However, that is not to say that the floodgates have been opened; no doubt public policy (and indeed legal policy) will be considered within such claims and, in any event, the key limiting factor will be reasonableness. Whilst XX represents a progressive step in the law of damages on its face, the decision is ultimately based on a principle that courts have been applying for at least 140 years. That in itself demonstrates coherence and consistency in the law.