On 1 April 2020 The Supreme Court handed down judgment in the case of Whittington Hospital NHS Trust (Appellant) v XX (Respondent).

The Supreme Court has determined that a person may claim damages for a surrogacy arrangement using her own eggs and donor eggs as well as the costs for a commercial surrogacy arrangement in a country where commercial surrogacy is not unlawful. 

XX was born in 1983. She had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012. Each of these tests were  wrongly interpreted negligently.  The errors were detected in 2013 and in June of that year she was told that she had cervical cancer. Had appropriate action been taken in 2008 there would have been a 95% chance of a compete cure and she would not have developed cancer. 

XX was advised to have chemo-radiotherapy which would result in her being unable to have a child. Prior to treatment she had eight mature eggs collected and frozen. 

The Whittington Hospital NHS Trust admitted they had been negligent. The purpose of damages in a case such as this would be to put XX back into the position she would have been had the negligence not occurred.. XX had always intended to have children, and her and her partner had wanted four children. The expert evidence is that with her frozen eggs, her partner’s sperm and surrogacy she would be likely to have two children. They would then have been likely to have two further children using donor eggs and his sperm. XX’s  preference was to use commercial surrogacy in California but if that was not funded she would use non-commercial arrangements in the United Kingdom.  

Lady Hale gave the leading judgment.

In 2000 the Court of Appeal determined the case of Briody v St Helen’s and Knowsley Area Health Authority. Owing to medical negligence, Mrs Briody underwent a sub-total hysterectomy. Her ovaries were left intact. Many years later, she sought damages which included the cost of a Californian surrogacy.  She sought the costs of two cycles of treatment using her own eggs, which it was accepted would probably fail, and four cycles using donor eggs.  Lady Hale who was sitting in the Court of Appeal at the time, and said the Californian proposals were:

 “contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it”. 

She agreed that it was not reasonable for the Health Authority to pay for treatment using Mrs Briody’s embryos when this had such a slim chance of success. She took the view that surrogacy using donor eggs, was:

“not in any sense restorative of Ms Briody’s position before she was so grievously injured. It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers”

In relation to the view about donor eggs, Lady Hale said “In my view it was probably wrong then and is certainly wrong now.”

In the Supreme Court Lady Hale considered the developments in law and social attitudes since Briody. These include:

• The joint Consultation Paper issued in 2019 by the Law Commission, Building families through surrogacy.
• Third parties were banned from taking part in surrogacy arrangements for payment. Now non-profit agencies may initiate negotiations and compile information for reasonable payment. They can also advertise.
• At first only opposite sex married couples could apply for parental orders. Now they are joined by same sex married couples, same and opposite sex civil partners, couples whether same or opposite sex who are neither married nor in a civil partnership but living together and in an enduring relationship or single parents. All of these would be regarded as family for the purposes of the European Convention on Human Rights.
• The law now supports same sex relationships and parenthood in almost the same way as it supports opposite sex relationships.
• Civil Partnerships were introduced in the UK by the Civil Partnerships Act 2004.
• Same sex marriage was introduced in England and Wales by the Marriage (Same-sex Couples) Act 2013, in Scotland  by Marriage and Civil Partnership (Scotland) Act 2014 in 2014 and in  Northern Ireland by the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019.
• Same sex couples have been able to adopt jointly in England and Wales since the Adoption and Children Act 2002, In Scotland since the Adoption and Children (Scotland) Act 2007 and in 2008 and the Supreme Court declared the exclusion of unmarried couples from the Northern Ireland Adoption Order incompatible with the equal enjoyment of the right to respect for family life protected by articles 8 and 14 of the European Convention in Human Rights.
• Male same sex couples can achieve parenthood through surrogacy or adoption.

Lady Hale considered that this supported the observations of Lady Justice King in the Court of appeal:

“It is unnecessary to resort to statistics or research in order to appreciate the social changes in the years since Briody. These changes have led to the current acceptance of an infinite variety of forms of family life of which single sex, single person and so called ‘blended families’ are but examples. The creation of these families is often facilitated consequent upon the advances in fertility treatment including the acceptance of and increased use of donor eggs.”

Lady Hale considered the developments in surrogacy in recent years. The Courts have bent over backwards to support the relationships created by surrogacy including commercial surrogacy overseas. The government now supports surrogacy as a valid way of creating a family. The use of assisted reproduction techniques is now widespread and socially acceptable.  

Lady Hale concluded that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy. 

Lady Hale also considered the changes that have taken place in the medicine and science of assisted reproduction. When the 1985 Surrogacy Arrangements Act was introduced IVF was in its infancy and success rates were very low. New techniques have been developed and people who are having trouble conceiving or bearing children or who are in same sex relationships increasingly turn to assisted reproduction.

In Briody it was argued that “a woman can hope for four things from having a child: the experience of carrying and giving birth to a child; the perpetuation of one’s own genes; the perpetuation of one’s partner’s genes; and the pleasure of bringing up a child as one’s own. Donor egg surrogacy using a partner’s sperm gives her two of those. And for many women, the pleasure of bringing up children as one’s own is far and away the most important benefit of having children. If this is the best that can be achieved to make good what she has lost, why should she be denied it?”

Lady Hale considered that this view is reinforced by the dramatic changes in the idea of what constitutes a family. She agreed with Lady Justice King in the Court of Appeal that:

 “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”

Lady Hale noted that this is the experience of those judges granting parental orders.  She therefore held that subject to reasonable prospects of success damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.

Although the court sanctioned damages for Californian commercial surrogacy in this case, it must be reasonable for a claimant to seek such foreign commercial arrangements. This is unlikely to be reasonable if the country does not have a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded. Damages must not fund unregulated systems where both surrogate and commissioning parents are at the mercy of unscrupulous agents and providers and children may be bought and sold. The costs involved must be reasonable.

Anest Mathias is a senior solicitor in the Family department at TV Edwards. She has broad professional experience including in relation to surrogacy and fertility cases. Contact Anest on anest.mathias@tvedwards.com  or 020 3440 8049 for advice on a related query.