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Published 28 April 2020
On 19 December 2019 the Court of Appeal handed down its judgment in the case of XX v Whittington Hospital NHS Trust which, at its heart, lay a simple determination, namely whether a claimant could recover damages sought in relation to a service which, while being legal in the country in which it was intended that the service would be performed, would have been illegal in the United Kingdom.
The service in question was a commercial surrogacy arrangement to be performed in California. The Claimant’s desire to enter into that arose following negligence in the diagnosis of cervical cancer, which left her unable to bear children. The Court of Appeal held in favour of XX.
We published two comment pieces in the aftermath of the Court of Appeal decision, one Surrogacy costs for claims involving infertility as a result of clinical negligence dealing with the decision itself and the other, Illegality and the recoverability of damages: a dangerous path, considering the potential implications in other areas.
The case was then appealed to the Supreme Court, whose judgment was handed down on 1 April 2020. By a narrow 3:2 majority the Supreme Court upheld the Court of Appeal’s decision.
Prior to XX, the leading case in this area was the Court of Appeal’s decision in Briody v St Helen’s & Knowsley Area Health Authority in which it had been held the costs arising from arrangements for a surrogate pregnancy in California were not recoverable. Interestingly it was the then Lady Justice Hale who had delivered the lead judgment in Briody who, as Baroness Hale, delivered the lead judgment for the majority in XX.
Baroness Hale’s judgment starts by setting out in detail the UK law on surrogacy before analysing the decision in Briody. It goes on to consider subsequent developments in relation to matters such as “the law’s idea of what constitutes a family”, official guidance on the practice of surrogacy, the progress of the medicine and science of assisted reproduction, and the attitudes of society in general to surrogacy arrangements.
Baroness Hale then concludes that “it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy”. This finding is not, however, all-encompassing, and the judgment puts forward three control mechanisms with which attempt to limit what could be a flood of claims.
First, the proposed programme of treatments must be reasonable. There may be good reasons to think that, but for the negligence, the claimant would have had the number of children now proposed, but there may not.
Clearly the court is to look closely at any assertion that a claimant would have gone on to have more children and it would appear that cogent evidence of this will be required.
Second, it must 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 reasonable unless the foreign country has a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded. Unregulated systems where both surrogate and commissioning parents are at the mercy of unscrupulous agents and providers and children may be bought and sold should not be funded by awards of damages in the UK.
The reasonableness of foreign rather than “home-based” surrogacy arrangements is not a given. However, one potential line of argument, that a claimant ought to seek a cheaper alternative in a place less regulated than California and any failure to do so is a failure to mitigate is closed off; each proposed arrangement will need to be considered in detail and on its merits.
Third, the costs involved must be reasonable. This too has not been put in issue in this case, which has been argued as a matter of principle, but it should certainly not be taken for granted that a court would always sanction the sorts of sums of money which have been claimed here.
The judgment gives no indication of what factors ought to be taken into account in assessing reasonableness, thus paving the way for further litigation.
The dissenting judgment of Lord Carnwath (with whom Lord Reed agreed) points to a fundamental difference in approach, one which may yet breathe life into this issue. Lord Carnwath felt that allowing the claim would undermine the coherence and consistency of the law. He summed up his position by saying:
It is true that there have been striking developments in society’s approach to many issues affecting family life, including surrogacy…There has however been no change to the critical laws affecting commercial surrogacy, which led to the refusal in 2001 of damages on that basis. Nor does the Law Commission propose any material change in that respect. It is also apparent from recent studies that public attitudes remain deeply divided (see for example the Second Report of the Surrogacy UK Working Group on Surrogacy Law Reform (December 2018). So long as that remains the state of the law on commercial surrogacy in this court, it would not, in my view, be consistent with legal coherence for the courts to allow damages to be awarded on a different basis. In short, I consider that the decision of the Court of Appeal was correct in 2001, and remains correct today.
Nevertheless, this view was that of the minority and so we are left now with an authoritative decision by the highest court in the land permitting the recovery of damages for something which would, in this country, be an illegal arrangement. It remains to be seen whether the Supreme Court’s next foray into questions of illegality and consistency (Henderson v Dorset Healthcare University NHS Foundation Trust, due for hearing on 11-12 May 2020) might dilute the effect of the judgment in XX, and it may be noteworthy that the only member of the Supreme Court to sit on both cases is Lord Reed, who shared Lord Carnwath’s views.
In any event, it will be interesting to see whether any of the issues that we drew out in our previous piece (Illegality and the recoverability of damages: a dangerous path) now come to pass and where (and in relation to what) the principle now established by XX is prayed in aid. Baroness Hale’s control factors might restrict the number of claims we see, but as noted above there will inevitably be further litigation needed in order to clarify what exactly is a reasonable surrogacy arrangement.
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