Court awards damages to cover commercial surrogacy
31 January 2019
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust  EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
Before the chemo-radiotherapy began, Ms X underwent a cycle of ovarian stimulation and egg harvest, producing 12 eggs which were then cryopreserved by vitrification. This meant that it was possible for Ms X to have her own biological children through surrogacy and sought to do so in California. In California, commercial surrogacy arrangements are legal and therefore binding on the parties to them. This is an attractive option for those seeking children through surrogacy, as it offers certainty and a high degree of choice. Alternatively, in domestic law, the options for surrogacy are far more restricted (commercial arrangements are illegal, for example) and increasingly potential parents are looking abroad (this is a subject I have written about here).
In the High Court, Sir Robert Nelson (sitting as a Judge of the High Court) found that the claim for expenses of Californian surrogacy had to fail. Commercial surrogacy arrangements are illegal and thus were contrary to public policy. He stated that as altruistic surrogacy arrangements were lawful in the U.K., a claim could attract an award to facilitate such an arrangement (presumably expenses, without any commercial element). This followed dictum of Hale LJ in Briody v St Helens and Knowsley Area Health Authority  QV 856 “Briody”) – a case with some similar issues.
Further, Sir Nelson found that damages were limited to the use of her own eggs only. Expert evidence had suggested it was, on the balance of probabilities, likely that Ms X would achieve only two births from her own eggs (and she sought damages to take into account her desire for four children). He found that the loss suffered was Ms X’s ability to have her child, not a child. The use of donor eggs (for the two further children) was not restorative of Ms X’s loss.
Sir Nelson gave Ms X the right to appeal on both issues: the recoverability of costs of commercial surrogacy from California and the use of donor eggs (i.e. for two further children).
Recoverability of the cost of Californian Surrogacy
The Court of Appeal (Lord Justice McCombe, Lady Justice King, Lady Justice Nicola Davies) allowed the appeal. In giving judgment, Lord Justice McCombe stated that it was clear that what Ms X proposed to do (enter into a legal contract into the US) was not unlawful. Therefore the issue was whether it remained contrary to public policy (as it was found Briody, albeit in different factual circumstances as the prospects of successful surrogacy were slimmer).
Quoting from academic papers, the Court emphasised that ‘public policy’ was necessarily variable and this variability is ‘a stone in the edifice of doctrine, and not a missile to be flung at it’ (Sir Percy Winfield (42 Harvard Law Review 76 at 93-95).
The Court assessed the facts in light of Lord Toulson’s three considerations as to whether a public interest would be harmed by allowing an act which may offend the illegality doctrine in a civil context:
1) To consider the underlying reason for a prohibition and to assess whether that purpose would be furthered;
2) To consider any public policy on which the denial of the claim may have an impact;
3) To consider whether a denial of the claim would be a proportionate response.
The court stated that the underlying purpose of the prohibition of commercial surrogacy is to render acts of commercial surrogacy unlawful in the UK. It cannot conceivably be said that surrogacy as such is contrary to the public policy of domestic law.
The court said that denying Ms X this head of loss would be a bar to her full recovery of her position but for the negligent act i.e. her personal autonomy in being able to found a family.
Finally, the court found that it would be disproportionate, or ‘overkill’, if recovery were to be barred because there was a notional aversion to a lawful act abroad by reference to a prohibition in a domestic setting.
‘Own egg’/’donor egg’: Recoverability
Ms X’s barristers argued that to allow an award for damages was equivalent to allowing damages for a prosthetic limb for an amputee: such a limb is not the Claimant’s genetic material nor is as good as a real leg, but it represents the best compensation possible.
The Defendant argued that the analogy was erroneous. In the limb-scenario, both pre and post there would be a functioning limb. Ms X would not have a functioning womb if the cost of a donor egg being used was recoverable. Ms X’s legal team stated that this concentrates unduly on the physical element of damages, and not the wider aim and the compensatory principle.
The court preferred the arguments of Ms X’s legal team. This approach, taking a purposive approach to damages, ‘reflects modern law as to restorative compensation’.
Therefore the appeal was allowed. Practitioners and Claimants will look on to see whether the Defendants seek permission to appeal to the Supreme Court. For those interested in developments to our domestic surrogacy law, this judgment appears to be another example of the need for reform being led by Parliament.
Jake Richards is a barrister at 9 Gough Square.
Listen to Rosalind English discussing the first instance decision in this case with David Prest in Episode 11 of Law Pod UK