On 1 April 2020, the UK Supreme Court ruled in Whittington Hospital NHS Trust v XX on the fascinating issue of whether damages for funding foreign surrogacy could be considered as an appropriate remedy in a tort action.
The plaintiff in this case was a woman who lost the ability to bear a child as a consequence of a medical negligence by an hospital which admitted liability.
The dispute was thus concerned with the assessment of the damages that the plaintiff could receive. The calculation obviously depended on how the woman intended to put herself in a position as she would have been if she had not sustained the wrong.
The remarkable claims of the victim
In this respect, the woman made a number of remarkable claims which, it seems, were accepted without debate by the court: (i) as both her and her partner came from large families, she would want to have four children; and (ii) she would want to have those children through surrogacy. It is unclear whether adoption was considered at any point of the proceedings.
I will not comment here on the fact that it seems that the claimant could seek compensation for as many children as she wanted to (the judgment underscores that her sister had 10, so maybe that was the limit). But one wonders whether the choice of the plaintiff for surrogacy was disputed. One alternative remedy would obviously be adoption. In many countries, one would be legal, while the other would not be, but this is not the case in England. Yet, there is a duty to mitigate loss in the English law of torts, and the duty means that while the plaintiff may choose the most expensive remedy to make good her loss, she may not charge it to the defendant (Darbishire v. Warran, 1963). But maybe adoption is actually more expensive than surrogacy.
The debate focused on a third claim: the claimant would prefer to use commercial surrogacy arrangements in California; but if this would not be funded (i.e. through the damages awarded by the court), she would use non-commercial arrangements in the United Kingdom.
The reason why the claimant feared that her preference for commercial surrogacy might well be denied funding was that the Court of Appeal had ruled in Briody v St Helen’s and Knowsley Area Health Authority that commercial surrogacy in California was contrary to public policy. The Court of Appeal had also ruled in Briody that only surrogacy with the claimant’s own eggs would be restorative.
The first instance judge thus ruled that commercial surrogacy would not be funded, and that, given that the claimant could probably have only two children using her eggs, only two non commercial surrogacies in the UK could be funded, for £ 37,000 each.
Judgment of the Supreme Court
The Supreme Court overruled Briody on both accounts. Lady Hale ruled for the majority that awards of damages for foreign commercial surrogacy are no longer contrary to public policy, and that no distinction should be made based on the origin of the eggs.
From the Press Summary of the Court:
UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and 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, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and 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, including the child, are properly safeguarded [49-54].
Lord Carnwath’s dissenting judgment differs from the majority on [this] issue only. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Society’s approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. It would not be consistent with legal coherence to allow damages to be awarded on a different basis [55-68].
So, it seems that the claimant was entitled to choose commercial foreign surrogacy over UK non commercial surrogacy.
But then this begs an obvious question: how can you possibly justify that she charges the defendant with her costly preferences? Unfortunately, it will take another case to know, it seems. Lady Hale concluded her judgment by stating:
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.