Whittington Hospital NHS Trust v XX [2020] UKSC 14

The Supreme Court addressed the question of what the measure of damages should be for a woman’s loss of the ability to have children.

Full judgment, dated 1 April 2020

Summary:

R claimed, and had been allowed by the Court of Appeal, the costs of surrogacy arrangements in California which would be unenforceable in the UK, including arrangements where donor eggs would be used. R contended that such a decision was in breach of the public policy principles set out in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010. The Supreme Court, in a judgment given by Lady Hale, dismissed the appeal, holding that the public attitude towards, and law regarding, surrogacy had moved on since Briody and that such costs were recoverable.

Discussion:

This case arose from the Appellant’s (“A”) failures, in 2008 and 2012, to diagnose severe dyskariosis and invasive carcinoma, leading to the Respondent (“R”) developing cervical cancer. The treatment she required for the same, chemo-radiotherapy, resulted in her being unable to have children herself. Though she had frozen eggs before her treatment, the damage to her womb resulting from the treatment was such that she could not bear any of those eggs that were fertilised. The rest of the general damages arising from the negligence had already been awarded – the focus of the appeal was solely on the damages for her loss of ability to bear her own child (2-4).

Baroness Hale, giving the judgment of the court, gave the factual and procedural background. R had always wanted a large family: both her parents came from a large family; she was one of several children and her sister had ten children. Her partner also came from a large family and also wanted several children. The evidence was that R and her partner both wanted four children but would only be able to have two using her eggs and his sperm, with any more requiring donor eggs. R’s preference was to use commercial surrogacy arrangements in California, though if those were not funded she would use non-commercial arrangements in the UK (5).

Liability had been admitted. Sir Robert Nelson held, at first instance, that he was bound by Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010 to reject the claim for commercial surrogacy and to hold that surrogacy using donor eggs was not restorative of R’s fertility. Non-commercial surrogacy using her own eggs, however, was restorative, so that only two lost pregnancies sounded in damages. £37,000 per pregnancy was awarded (6). Each party appealed the points on which they had lost. The Court of Appeal allowed R’s appeals in relation to both the use of commercial surrogacy and the use of donor eggs was restorative, so that the costs of both was recoverable (7).

A appealed. Lade Hale set out three issues, being (i) whether damages to fund surrogacy using C’s own eggs were recoverable, (ii) whether damages to fund surrogacy arrangements using donor eggs were recoverable and, in either case, (iii) whether damages to fund the costs of commercial surrogacy in another country were recoverable (8). 

In relation to the last, a germane issue was that commercial surrogacy arrangements are banned in the UK (9). Lady Hale set out the UK law on surrogacy from paragraph 10. The starting point is that the woman who bears the child is its mother, pursuant to the two Human Fertilisation and Embryology Acts, 1990 and 2008, ss 27 and 33 respectively. The HFEA 90 s36(1) also provides that no surrogacy arrangement is enforceable. If the surrogate mother wants to keep the child, the donor parents’ only recourse is to seek a court order that the child live with them, with the child’s welfare the paramount consideration. Likewise, if the surrogate mother is married or in a civil partnership, her husband or partner will be the child’s legal father (11). 

The mechanism for transferring legal parenthood from surrogate to commissioning family is the power to make parental orders in ss54 and 54A of the HFEA 08. Applications may only be made where the gametes of at least one of the applicants was used to create the embryo. This applies wherever in the world the surrogacy was done. Such an application is necessary even where the commissioning parents are the legal parents of the child in another jurisdiction (12). Applications cannot be made before the child is born but can be made, in theory, a significant time afterwards (In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam)). Applications may only be made where the child’s home is already with the applicant(s) (14) and the court must be satisfied that the legal parents have agreed and have done so freely in full understanding of the consequences (15). Importantly, the court must be satisfied that no money or other benefit has been given or received for making the agreement, unless authorised by the court, although in foreign surrogacy cases payments have been approved retrospectively (16).

Paragraph 18 onwards addresses the reasons for, and enacting of, the Surrogacy Arrangements Act 1985, which had been preceded by a report that opined “the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case.” The recommendation was that all agencies recruiting surrogacies be banned, all professionals be prevented from assisting in surrogacies and all agreements be illegal and unenforceable. However, SAA was less categorical, in that it did not ban professionals taking part. The HFEA 08 allowed non-profit bodies to act as agents for surrogacies and to advertise the same (20).

Hence the reason that R wanted a surrogacy arrangement in California. Such arrangements are enforceable in courts and the surrogate mother could be chosen by her (22).

Paragraph 23 onwards dealt with Briody. In that case the cost of a California surrogacy was claimed. Lady Hale had herself given the leading judgment in the Court of Appeal on the issue of principle and had commented that surrogacy was becoming more acceptable and more likely to be regulated than prohibited. The California surrogacy (rejected at first instance) was again rejected, as was a new proposal relating to B’s own eggs (because it had only a 1% chance of success) and a proposal in relation to donor eggs, because, in Lady Hale’s view “It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers” (26).

However, at paragraph 28, Lady Hale said as follows:

This Court is not, in any event, bound by the ratio of Briody. But the persuasiveness of that ratio is inevitably affected by the developments in law and social attitudes which have taken place since then.

She said that the developments in the law had been dramatic (the changes made by the HFEA 08) and there were now three not-for-profit organisations facilitating surrogacy arrangements in the UK (29). Moreover, the law’s conception of the family had changed, meaning that many types of couples and single people could apply for parental orders (30). Gay couples can now marry and adopt children, and there is a growing demand for surrogacy arrangements for gay couples (31). King LJ had recognised as much in the Court of Appeal’s decision in this case (32).

Further, health policy had changed to support surrogacy arrangements (34) and medical technology had improved leading to increased adoption of fertility techniques, both on the NHS and commercially. 

Paragraph 37 onwards dealt with the Law Commission’s report Building families through surrogacy: a new law. It emphasised that public attitudes were now supportive of surrogacy (37) and proposed a reform that would enable legal parenthood granted overseas to be recognised in the UK, following an appraisal of the law and practice in each country, in the hope that would encourage UK citizens using surrogacy agreements to choose countries that give surrogate mothers adequate protection (38). Lady Hale concluded that “there is a spectrum of surrogacy arrangements” and that:

It is no longer thought that women should not have the right to choose to use their bodies in this way. But it is thought that both they and the commissioning parents should be protected from exploitation and abuse.” (39)

Those principles were applied to the present case from paragraph 40 onwards. Lady Hale started by quoting the principle from Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 that the measure of damages is that which puts the injured party as nearly as possible in the position they would have been before the accident (41). However, she listed several qualifications to that principle. The first was that some heads are irrecoverable because they are illegal or contrary to public policy, giving the example of McFarlane v Tayside Health Board [2000] 2 AC 59, where it was held that the costs of bringing up a healthy child were not recoverable (42). The second was that the steps taken in seeking to restore what has been lost must be reasonable (43). 

In principle, the cost of surrogacy arrangements was held to be recoverable (44). The refusal to allow the costs of the same in Briody had been on the basis that the prospects of success were so low. Where the right evidence could be provided in relation to the reasonableness of the procedure and the prospects of success, the costs would be recoverable.

In principle, the costs of using donor eggs was also recoverable (45). Interestingly, Lady Hale referenced her own argument in Briody that this was not truly restorative, saying:

We need not concern ourselves with whether or not this view was technically obiter. In my view it was probably wrong then and is certainly wrong now.

Paragraphs 46 and 47 set out the ways in which the surrogacy using donor eggs brings a claimant as close as she can get to the experience that she has lost (having a child).  At paragraph 48 this was said to be reinforced by the dramatic changes in the idea of what constitutes a family that have taken place over recent decades. Lady Hale cited King LJ’s comment, below, that “psychologically and emotionally the baby who is born is just as much ‘their’ child as if one of them had carried and given birth to him or her” with approval.

Paragraph 49 onwards then addressed the most difficult issue, that of the costs of foreign surrogacy. Lady Hale framed the issue by asking the question why UK courts should award as damages the costs of contracts that they will not enforce. The answer was that many of the same heads are recoverable under UK surrogacy arrangements, and the payment to the surrogate mother would likely be approved retrospectively by a UK court in any event. The fees for the US lawyers and surrogacy agencies would be unlawful in the UK, but she asked herself “[t]o what extent should that taint all of the items in the bill?” (50)

Lady Hale also noted that it was not actually illegal for any of the participants to do the acts prohibited by the SAA, which had never intended to criminalise the surrogate or commissioning parents. Further, there was no evidence a court had ever refused retrospectively to authorise a surrogacy payment (51). Finally, the legal developments since Briody – the changing attitude of the courts and government and the Law Commission’s report – were in favour of allowing R’s claim (52).

For those reasons, Lady Hale concluded, the appeal should be dismissed, and R’s claim upheld (53). She did, however, list important limiting factors, being:

  • the proposed programme of treatment must be reasonable:
  • it must be reasonable to seek a foreign arrangement rather than a UK-based one; and
  • the costs involved must be reasonable.

Lord Carnwath was the only dissenting judge and he dissented only on the issue of funding the California surrogacy arrangements. He started his judgment by emphasising the emphatic language with which Lady Hale had found in Briody that funding a Californian arrangement would be contrary to public policy (56-57). He then focussed on the McFarlane decision, as it had been applied in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52. He cited numerous sections of the judgment that made reference to the concept of “legal policy”, which was said to be “our more or less inadequately expressed ideas of what justice demands” and which was distinguished from public policy (62). In terms of how to discern what “legal policy” required, he found it helpful to consider the underlying principle of coherence or consistency in the law (63). He could find no better guide to what the law was than what Parliament had indicated. He cited several authorities on the desirability of legal conformity or unity, including a long extract from Gray v Thames Trains Ltd [2009] UKHL 33 (65) and found that although there had been substantial changes in the attitudes of society towards surrogacy, there had been no change in the laws that had required the decision in Briody. Accordingly he felt that decision should be upheld and the appeal allowed on that discrete issue (67-68).

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