Are surrogacy costs a legitimate claim?

1 October 2017 by Rosalind English

XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017)  [HQ15C04535]

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Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.

The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable.

The Court of Appeal had ruled in Briody that such a claim would be against public policy and therefore could not be allowed. The claimant in this case argued that society’s attitudes towards surrogacy had evolved since that case was decided 15 years ago. For a start the courts have awarded sums in excess of reasonable expenses on the basis that the amounts involved are not disproportionate and do not amount to an affront to public policy (Re C). Such expenses would have been permitted if the procedure had been done in the UK. The claimant submitted that this reflects a change in society’s attitudes to surrogacy, as well as the fact that non-profit agencies had been set up through which to find and pay surrogates, such as Childlessness such as COTS – Childlessness overcome through Surrogacy – and Brilliant Beginnings. Also courts have retrospectively authorised commercial payments to surrogates. So why could she not claim such payment prospectively?

The judge (Sir Robert Nelson) acknowledged that attitudes to commercial surrogacy may have changed since Briody  but such changes in the law must be brought about by Parliament or the Supreme Court. He did allow damages for domestic non-commercial surrogacy.

The claim was therefore limited to the costs of surrogacy in the UK, but only using the claimant’s own eggs (not donor eggs).

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Related posts:

• Strasbourg grapples with international surrogacy and the concept of “family”
• Father should be allowed to apply for parental responsibility following surrogacy arrangement
• Fertility regulator wrongfully denied consent for mother’s surrogacy