On 1 April 2020 the Supreme Court handed down its decision in XX v Whittington Hospital NHS Trust [2020] UKSC 14. The focus of the appeal was on the damages payable for the loss of the claimant’s ability to bear her own child.
The claimant had a number of cervical smear tests negligently reported resulting in the hospital failing to detect cervical cancer. She had eight eggs frozen before undergoing the chemo-radiotherapy that would leave her infertile. She expressed a wish to have four children and her preference was for surrogacy arrangements in California on a commercial basis. If this was not funded she would use non-commercial arrangements in the UK.
The High Court had dismissed the claim for commercial surrogacy in California as contrary to public policy and held that surrogacy using donor eggs was not restorative of the claimant’s fertility. However it allowed damages for own-egg surrogacies in the UK. The Court of Appeal found in favour of the claimant. The hospital appealed to the Supreme Court.
The appeal raised three issues:
The claimant succeeded on all three issues. The Supreme Court was unanimous on issues one and two but split 3:2 on issue three.
Whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome. Those chances were reasonable, and the claimant delayed cancer treatment to ensure that her eggs were harvested. It was therefore difficult to see why the claim should not succeed.
Damages for donor egg surrogacy arrangements could be recovered. There had been dramatic developments in the law’s idea of what constituted a family. This was the closest one could get to putting the claimant in the position she would have been in had she not been injured. Therefore, as long as the arrangement has reasonable prospects of success, damages for the reasonable costs of it may be awarded.
Assisted reproduction has become widespread and socially acceptable. The Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents’ child from birth. Awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy.
However both the treatment programme and the costs involved must be reasonable and it must also be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK. This is unlikely to be so unless the foreign country has a well-established system in which the interests of all involved, including the child, are properly safeguarded.
Therefore commercial surrogacy costs, including those arranged outside the UK, were potentially recoverable costs in a PI claim notwithstanding the illegality of commercial surrogacy arrangements in the UK under the Surrogacy Arrangements Act 1985.
Whilst the 1985 Act rendered such arrangements unenforceable in the UK, this did not present a public policy defence to the head of loss in principle. The Supreme Court was influenced by the more progressive approach in the US which provided a process whereby the parents were able to crystallise their rights over those of the surrogate mother before the birth of the child, giving far greater security. This process was not available in the UK.
Whilst no breakdown on the claim is given, the US-based surrogacy claim for four births exceeded £500k. The recoverability of four births was not commented on in the Supreme Court and would remain an issue on the facts of the case in hand. However it is clear that the head of loss will be considerably more than the cost of permissible surrogacy in the UK, or the cost of IVF which we commonly see in spinal injury cases. We expect to see alternate claims being presented for off-shore commercial surrogacy in most cases where a loss of fertility arises as a result of the injuries sustained. Competitive quotes and costings will be required to pursue the usual mitigation arguments.
For more information, please contact Andrew Underwood.
Andrew Underwood
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