Court awards damages to cover commercial surrogacy

31 January 2019 by

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 [2018] 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 [2002] 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’.

Conclusion

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

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: