Supreme Court allows damages for commercial surrogacy in the USA

Clinical Negligence lawyers have been awaiting the judgment in Whittington v XX that was delivered by the Supreme Court yesterday –

https://www.bailii.org/uk/cases/UKSC/2020/14.html

This has been a long running case which raised a number of issues in relation to quantum, causation and provisional damages. The most controversial arguments have surrounded the claimant’s right to damages for the cost of surrogacy.

Breach of duty was not controversial. There was a failure to diagnose cervical cancer. The Claimant required extensive surgery and chemotherapy. She suffered a total loss of fertility. She had no children. She had a strong wish to start a family. The claimant’s intention was to enter into a surrogacy arrangement in California. Such arrangements are unlawful in the UK. She also wished to use donor eggs.

In 2002 the Court of Appeal had dismissed a similar claim in the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. The key reason was that commercial surrogacy was unlawful. 

In XXX, Sir Robert Nelson found that he was bound by Briody and refused that head of claim. The use of donor eggs was also refused as this was not restorative of her loss i.e. fertility. The Court of Appeal allowed her claim on both counts. She was doing nothing wrong by entering into an arrangement that was perfectly lawful in the place where the surrogacy would take place. McCombe LJ said - 

‘In my judgment, therefore, the law no longer requires a bar to the recovery of damages claimed by Mrs X on policy grounds’ and

‘The distinction between ‘own egg surrogacy’ and ‘donor egg surrogacy’, employing the partner’s sperm would be entirely artificial. Having regard to the development of social attitudes, I feel able (with the greatest respect to Hale LJ’s views of 17 years ago) not to follow the dicta in Briody on this point.’

And so to the Supreme Court.

They have found in favour of the Claimant by a 3 – 2 majority. Lady Hale gave the majority judgment. She noted that the Supreme Court was not bound by Briody. Its persuasiveness was mitigated by ‘subsequent developments in the law and social attitudes relating to surrogacy’.

On the question of donor eggs, Lady Hale rejected her own observations in Briody that this was not restorative of the claimant’s loss. ‘In my view it was probably wrong then and is certainly wrong now.’ 

This view was influenced by a different understanding of the ‘family’ -  

“ This view is reinforced by the dramatic changes in the idea of what constitutes a family which have taken place in recent decades, referred to earlier. There are many different kinds of family these days. As King LJ pointed out in the Court of Appeal, “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” (para 103). This is the experience of those judges who have the happy experience of granting parental orders. I would therefore hold that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.” (48).

On the question of the California surrogacy, the claimant was not planning anything illegal.

“For all those reasons, I conclude that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.” (53).

Lady Hale pointed out that the entitlement was not unlimited. Firstly the arrangement had to have reasonable prospects of success. In addition – “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".

The dissenting judgment of Lord Carnwath, with which Lord Reed agreed, was limited to the surrogacy point. He said that it was his view that the Court of Appeal took the correct view in Briody and that view remains correct today.

This has been an area of uncertainty for many years. Not for the first time in recent years, we have seen judicial thinking moving in line with shifts in society and in scientific developments.