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Allowing the commercial costs of surrogacy: an X-rated decision, or common sense?

  • Legal Development 14 July 2020 14 July 2020
  • UK & Europe

  • Healthcare

Judgment has now been handed down by the Supreme Court in the case of XX (Respondent) v Whittington Hospital NHS Trust (Appellant) [2020] UKSC 14, with the Supreme Court narrowly dismissing the Trust's appeal, ruling 3-2 in the claimant's favour.

Allowing the commercial costs of surrogacy: an X-rated decision, or common sense?

Lady Hale, with whom Lords Kerr and Wilson agreed, gave the leading judgment, and Lords Carnwath and Reed dissented. The full judgment can be found here.

The facts

The facts of the case were straightforward. The Claimant, who was 29 when the negligence was discovered, had suffered a number of negligently reported smear tests and cervical biopsies, which had left her infertile. The Claimant wanted a large family – her sister had 10 children – and she herself wanted to have 4. The issue to be determined was whether the Claimant could recover the commercial costs of surrogacy.

The authorities

Liability was not in dispute and Judgment was entered in May 2016. However, at an assessment of damages hearing at the High Court in September 2017 Sir Robert Nelson ruled that he was bound by the decision in Briody v St Helen's and Knowsley Area Health Authority, a Court of Appeal decision from 2001, in which the costs of commercial surrogacy arrangements were rejected as being contrary to public policy, and because using donor eggs was deemed not to be restoring the Claimant's natural fertility, or to phrase it another way, it was not putting her in the position she would have been had the tort not occurred. Ironically, Judgment in that case was also given by then Lady Justice Hale, who now found herself having to effectively reverse her earlier decision in order to find for the Claimant.

The law

The issue which the Supreme Court had to grapple with is that under the Surrogacy Act 1985, no money or other benefit, other than expenses reasonably incurred, should be given or received by a surrogate. The purpose of the Act is to prevent vulnerable women being exploited for profit, by unscrupulous middle men who may seek to take advantage not only of the surrogate mother, but also the desperate commissioning parents. In her judgment, Lady Hale noted however that at the other end of the scale, there are women who are altruistic, who should be free to choose what they want to do with their bodies, who enjoy pregnancy and the gift of giving birth, and who want to deliver a family to a parent or parents who wouldn't otherwise have been able to have children.

The judgment

In delivering judgment in favour of the Claimant, Lady Hale went against her previous decision in Briody. Lady Hale noted that the legal definition of family, and the public perception of surrogacy, had changed considerably since 2001. Lady Hale said that in Briody she had not suggested that there was any general principle against the award of commercial surrogacy costs, just that the Claimant's chances of success were so vanishingly rare in that case, that it would not be reasonable to allow the costs.

In the present case, Lady Hale found that the costs of a commercial surrogacy in the US were not dissimilar to the reasonable costs that would be incurred in the UK in any event – the medical costs, the legal costs and the commissioning costs. Lady Hale was, however at pains to point out that her decision in this case does not mean that damages will always be awarded, much less the level of damages claimed in this case.

The guidance

In laying down guidance, Lady Hale set down the following criteria:

  • Firstly, the proposed programme of treatments must be reasonable, i.e. it must have reasonable prospects of success.
  • Secondly, it must be reasonable for the Claimant to seek foreign, commercial surrogacy arrangements. The foreign country must have a properly-established system of safeguards for the surrogate and the commissioning parents. Even in California, Lady Hale warned, all was not always well.
  • Thirdly, the costs of the arrangement must be reasonable.

Conclusion

To summarise, the decision comes as no surprise. The law in this area has long been fraught with inconsistencies and is thought by many to be out of step with current public perceptions on the definition of family. This judgment doesn't break new ground or establish new precedents, but it does show that the Court will, in the right circumstances, interpret legislation in such a way as to ensure that the decision of the court reflects the views of society as a whole.

End

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