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Supreme Court to rule on damages for commercial surrogacy that is illegal in the UK

  • Legal Development 19 December 2019 19 December 2019
  • UK & Europe

  • Healthcare

Supreme Court to rule on damages for commercial surrogacy that is illegal in the UK


On Monday 16 December 2019 the Supreme Court started to hear two days of arguments in the case of XX v Whittington Hospital NHS Trust as to whether or not the NHS should have to pay for a woman to have surrogate children in the USA. 

This is a long-running case, in which the NHS admitted liability for a failure to detect the Claimant's cervical cancer from smear tests in 2008 and 2012, and biopsies in 2012 and 2013. It was admitted that a result of the delay in diagnosis, the claimant had been left infertile. However, there was a dispute between the parties as to whether or not the defendant NHS Trust should have to pay for the costs of a commercial surrogacy arrangement in California, something which is in direct conflict with English law, where such arrangements are illegal, and which had previously been rejected by the Court of Appeal in Briody v St Helens And Knowsley Area Health Authority [2001] EWCA Civ 1010.


The case proceeded to trial at the High Court in June 2017, where the claimant argued that she should be entitled to recover the costs of paying a financial incentive to a surrogate mother in California on the basis that this was perfectly legitimate and legal. However, this argument was rejected by the Court, although it did award costs on a non-commercial basis, as that was permissible under English law.


The claimant appealed, and in November 2018, the matter was heard by the Court of Appeal, who reversed the lower Court's decision. The Court of Appeal placed a heavy emphasis on the principle that a claimant should be restored to his or her position prior to the tort, and found that it would be "overkill" to prevent the claimant from recovering her loss in this case. Essentially, the Court of Appeal reached a different conclusion to the lower Court, ruling that the claimant's proposed act endangered no integrity of criminal or civil law, so her claim should be allowed. There was, the Court of Appeal said, no bar to recovery on grounds of public policy.

That decision was in turn appealed by the NHS, and so the case proceeded to the Supreme Court, where Lady Hale will hear her final case before retirement, by coincidence having also heard the original appeal to the Court of Appeal in Briody. Lord Reed, Lord Kerr, Lord Wilson and Lord Carnwath will also hear the appeal.


This case is significant because it will provide definitive guidance on whether or not a claimant can recover the costs of treatment which is currently illegal in the UK. Previous rulings in this case have suggested that there is sympathy for the claimant as the treatment she seeks is not in itself illegal, and public perceptions have changed considerably in recent years. However, if the Supreme Court rules in favour of the claimant, it could in principle open the door for claimants to recover damages for much more controversial treatments which are not currently legal in the UK.


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