Supreme Court holds hospital liable for commercial surrogacy — William Edis QC

3 April 2020 by Guest Contributor

Whittington Hospital NHS Trust v XX [2020] UKSC 14

The Supreme Court has held that a defendant hospital trust must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her amongst many other ghastly consequences of the repeated fault of the Trust.

Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant came from a large family and had always wished to have four children.  Her preference was to enter into a commercial surrogacy arrangement in the USA and she sought the cost of doing so as damages. She sought to use the stored eggs but also to rely on surrogacy with donor eggs fertilised by her husband’s sperm. The defendant argued that it should not have to pay damages to reflect the cost of UK surrogacy, the use of donor eggs and of the American commercial surrogacy.

At first instance Sir Robert Nelson refused the costs of using donor eggs and of commercial surrogacy abroad, ruling that he was bound by the Court of Appeal’s decision in relation to precisely these heads of loss in Briody v St Helen’s and Knowsley AHA (Damages and Cost) [2001] EWCA 1010.

On appeal the Court of Appeal upheld the claimant’s appeal and dismissed the defendant’s cross-appeal, see [2018] EWCA Civ 2832.

By a 3-2 majority the Supreme Court upheld the Court of Appeal’s decision.

The Issues Before the Supreme Court

The questions to be answered were:

1. Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
2. If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
3. In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?

The Reasoning of the Majority

Lady Hale for the majority emphasised the restitutionary purpose of damages in tort. That is subject to limitations, for instance where the purpose for which the damages were awarded was contrary to legal or public policy, but is undoubtedly the starting point for any assessment of damages.

In a lengthy section of the judgment, at paragraphs 9 – 22, Lady Hale considered the history of the legal framework for surrogacy.  At paragraphs 28 – 39 she considered developments since Briody, including the increased role of third parties, developing social attitudes to surrogacy, changing views as to the definition of what constitutes a family and advances in techniques of assisted reproduction.

Her conclusions were:

1. Surrogacy agreements are and always have been unenforceable;
2. The commissioning parents can, however, seek a parental order and the surrogacy agreement will be a factor within any application for this, though the child’s welfare will be paramount;
3. Not-for-profit organisation can participate in making the surrogacy arrangements and may charge to cover their reasonable expenses;
4. It is, however, unlawful for those aiming to make a profit to take part in or facilitate surrogacy;
5. It is and never has been unlawful for the commissioning parent to make arrangements for a commercial surrogacy arrangement either in the UK or abroad;
6. Society has now a much more accepting view of surrogacy than it did in 1985, the date of the Surrogacy Act;
7. Equally society now uses a much more nuanced and wider definition of what constitutes “a family”.

The Ratio

The majority held that:                                  

1. The costs of UK-based, non-commercial surrogacy were recoverable. The only argument to the contrary dealt with in the judgment – that it might be contrary to legal or public policy to bring into the world children who would not otherwise have been born — was peremptorily dismissed;
   
2. The costs of surrogacy using donor eggs were recoverable. In Briody Hale LJ, as she then was, had given the leading judgment and had refused such costs, saying that this course of treatment was not truly restitutionary as it did not make good what had been lost because, “neither the [resulting] child nor the pregnancy would be hers.”  In the present case Lady Hale said that that view was “probably wrong then and certainly wrong now” She identified four things a mother might cherish: “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” and said that the last two were available from surrogacy using donor eggs, making their use unavoidably incomplete but permissible restitution. She was candid enough to acknowledge that precisely this argument was run in Briody but rejected by the Court.
   
3. The costs commercial surrogacy in the USA were also recoverable.

The Third Issue

The majority gave three reasons for allowing these costs to be recovered.

First, if one compared the items charged for in the USA some would be recoverable in the UK as well whilst some would be regarded as unlawful and thus be irrecoverable.

It is not perhaps easy to see why this is a relevant consideration. The claimant was not asking to be reimbursed only those parts of the American bill that would have been lawfully recoverable in the UK.  Without being able to charge those elements that would have been unlawful in the UK, principally its profit, no doubt the American clinic would have declined to provide the treatment. That some elements of the bill would have been unobjectionable does not appear to affect the question whether a claimant may recover the cost of treatment that would have constituted a criminal offence if provided for profit in the UK.

Second, it is not a crime in the UK for the commissioning parent or surrogate to enter into a commercial agreement. As Lady Hale observed, “[i]t has never been the object of the legislation to  criminalise the surrogate or commissioning parents”.

But this seems to limit the definition of things that are contrary to legal or public policy to things that are “criminal” which is perhaps to conflate two separate, though no doubt overlapping, concepts. That it would not be a crime for a commissioning parent to enter into a commercial surrogacy arrangement does not in and of itself show that to do so is not contrary to public policy to sanction such an arrangement. There may be many reasons not to criminalise the desperate that do not demonstrate approval of their conduct.

Similarly, the judgment refers to cases where the Court has considered making a parental order in relation to a child born after a commercial surrogacy arrangement and seems to suggest that where the Court has then gone on to make a parental order this is relevant to the policy arguments.  An academic comment that such cases show that “English law, as developed through the jurisprudence of the High Court in the 30 years since [the Warnock Report] does not view commercial surrogacy as an intrinsic wrong”, is cited at paragraph 17. It does not though follow that where a Court charged with a statutory duty to have furthering the present and future interests of the child as its paramount consideration does not give conclusive weight to the historical fact of a commercial surrogacy agreement that gives any basis for inferring approval, or as the case may be diminished disapproval, of commercial surrogacy.  As Lady Hale herself observed, “…what is the court to do when confronted with a fait accompli?”

Thirdly, whilst Briody held that it was indeed contrary to public policy to award such damages, social perspectives and attitudes and the law had moved to a position where it could now be said that the ratio in Briody no longer held good.

However, none of the cited changes demonstrates any basis for saying that society now views surrogacy for profit as acceptable and the principal clauses relating to commercial surrogacy remain stubbornly unaltered by Parliament.

The Dissenting View

For the dissenting minority Lord Carnwath dealt only with the question of foreign commercial surrogacy arrangements. He emphasised the importance of coherence and, as far as it is attainable, consistency throughout the law, be it criminal or civil. He accepted that Hale LJ’s firm  rejection of the claims in Briody was a proper reflection of how public policy stood at the time. He agreed that there was nothing unlawful in the claimant’s travelling to California for the purpose of commercial surrogacy or in making the necessary arrangements in and from the UK but argued that a mere absence of criminality did not answer the legal or public policy question.

Having analysed what criteria one should use to answer the question of whether something is contrary to policy he concluded that:

[T]he objective is consistency or coherence between the civil and criminal law within a particular system of law. The fact that the laws of other jurisdictions and other systems may reflect different policy choices seems to me beside the point. It would in my view be contrary to that principle for the civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law.

Lord Carnwath also suggested that public attitudes were still divided and less easy to ascertain reliably than might be thought.

Comment

Part of the purpose of the arrangements entered into in this case seems to have been to circumvent the provisions of domestic law. Comparing the “fragmented and obscure” statutory provisions that operate in the UK with Californian surrogacy law Lady Hale quoted from Sir Robert Nelson’s first instance judgment where he said of the claimant’s preference for the latter that,

the system is well-established, the arrangement binding and the intended parents can obtain a pre-birth order from the Californian court confirming their legal status in relation to the surrogate child.

In other words the damages award was in part sought to allow the claimant, at the public expense, to escape the stipulations of, or some might say protections contained in, UK law.

It is important to remember at all times that surrogacy is available in the UK.  This is not a case where treatment was being sought abroad that was simply not available here.

Granted that the status of the resulting child may be subject to dispute and that the surrogate mother may repudiate the agreement and that no pre-natal unbreakable guarantees can be given, that is the result of carefully-crafted legislation not of accident. If, as the Law Commission said in its recent Report, legislation has not kept pace with attitudes then that is a matter for Parliament and not the courts.  It is worth noting that the Law Commission did not suggest any relaxation of the rules concerning commercial surrogacy.

Only the dissenting minority mentioned distributive justice but the direct result of this judgment is that part of the NHS’s ever-pressed budget is to be spent obtaining treatment that is available in the UK under an arrangement that would in the UK involve criminal conduct on behalf of one of the parties, not of course the claimant, and in circumstances where statutory protections or conditions thought necessary by Parliament have been circumvented.

William Edis QC is a barrister at 1 Crown Office Row

The Blog also covered the first instance decision here, and a podcast on for Law Pod UK can be to be found here.