After the hospital’s admitted negligence left XX unable to carry a pregnancy, she sought the cost of surrogacy as damages. The Supreme Court considered whether using donor eggs could restore part of what she had lost, and whether English public policy barred an award for commercial arrangements lawful abroad.
The hospital admitted errors in reporting tests. Earlier treatment could have preserved XX’s ability to bear a child. Eggs were collected before treatment. The appeal was confined to compensation for the loss of that ability.
XX proposed surrogacy using her own eggs and donor eggs. She preferred arrangements in California, where commercial surrogacy was lawful, and put forward domestic non-commercial arrangements as an alternative.
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How the claim reached the Supreme Court
Liability was admitted and judgment was entered in May 2016. In September 2017 Sir Robert Nelson assessed damages. He considered himself bound by the Court of Appeal in Briody v St Helen’s and Knowsley Area Health Authority. He rejected Californian commercial surrogacy as contrary to public policy, and held that surrogacy using donor eggs did not restore the claimant’s fertility. He allowed non-commercial surrogacy using her own eggs, at £37,000 for each pregnancy, £74,000 in total.
The claimant appealed the refusal of commercial surrogacy and donor eggs. The hospital cross-appealed the own-egg award. The Court of Appeal, McCombe, King and Nicola Davies LJJ, dismissed the cross-appeal and allowed her appeal. It treated public policy as open to change and donor-egg parenthood as restorative. The hospital appealed to the Supreme Court.
The three questions
Lady Hale, with whom Lord Kerr and Lord Wilson agreed, asked whether damages could fund surrogacy using the claimant’s own eggs; if so, whether they could fund surrogacy using donor eggs; and whether, in either case, they could fund commercial surrogacy somewhere that arrangement is not unlawful.
She described United Kingdom surrogacy law as fragmented. The woman who gives birth is the legal mother, and no surrogacy arrangement is enforceable. Third parties must not negotiate surrogacy on a commercial basis in the United Kingdom, but the offences can be committed only here, and the Act does not criminalise the surrogate or the commissioning parents. A parental order can transfer legal parenthood. Payments beyond reasonable expenses require court authorisation, but courts have authorised them after the event. The Law Commissions knew of no parental order refused on that ground, largely because the child’s welfare is paramount and the child is already living with the commissioning parents.
Own eggs and donor eggs
The starting point is that damages should, so far as money can, put the claimant where she would have been had the hospital not been negligent. Some losses remain irrecoverable for reasons of legal or public policy, and both the steps taken and their cost must be reasonable.
Lady Hale considered that where the prospects of success were reasonable, lawful surrogacy in the UK using the claimant’s own eggs could properly form part of a compensatory award. The very poor prospects of success on the facts of Briody distinguished that case.
She departed from her view in Briody that donor-egg surrogacy was not restorative because neither the pregnancy nor the child would be the claimant’s. She thought that view probably wrong then and certainly wrong now. Donor-egg surrogacy does not restore every aspect of what was lost, but it supplies, for a time and through another woman’s generosity, the closest available means of having a child. A woman may hope to carry and give birth, to pass on her own genes, to pass on her partner’s genes, and to bring up a child as her own. Donor eggs and her partner’s sperm give her the last two, and for many women raising the child matters most. King LJ’s account of changed ideas of family life reinforced that conclusion. Subject to reasonable prospects of success, the reasonable cost of United Kingdom donor-egg surrogacy can be recovered.
Commercial surrogacy abroad
Lady Hale rejected the Court of Appeal’s use of the illegality framework in Patel v Mirza. Nothing proposed was a crime here or in California. The issue was whether policy still prevented an award and whether the arrangement and its cost were reasonable.
She concluded that awarding the cost of foreign commercial surrogacy is no longer contrary to public policy. Much of a Californian bill, including treatment, payment to the surrogate and reasonable United Kingdom legal fees, could also arise in a domestic arrangement. Paying more than reasonable expenses is not itself an offence by commissioning parents, and such payments are likely to be authorised later. Since Briody, courts have recognised families created through foreign commercial surrogacy, government guidance supports surrogacy, assisted reproduction is familiar, and the Law Commissions have provisionally proposed a pathway closer to the Californian model, with greater safeguards.
Recovery is nevertheless limited. The proposed number of treatments must be reasonable. Choosing a foreign commercial arrangement rather than a United Kingdom one must also be reasonable, which is unlikely unless that country has a well-established system protecting the surrogate, the commissioning parents and the child. Damages should not fund an unregulated system in which participants may be exploited or children bought and sold. The costs must themselves be reasonable. Whether California always meets that standard had not been explored, and the sums claimed here had not been put in issue: the appeal was argued in principle.
The dissent
Lord Carnwath, with whom Lord Reed agreed, accepted the majority’s answers on own-egg and donor-egg surrogacy. He would have refused damages for commercial surrogacy. He regarded Briody as a correct statement of legal policy which still stands: the critical prohibition on commercial surrogacy arrangements remains, and he did not regard the Law Commission as proposing a material change. Awarding damages for conduct which would offend English criminal law if done here would, in his view, make the civil and criminal law incoherent. He would have allowed the appeal on that third issue only.
Verdict: The Court dismissed the hospital’s appeal. All five justices accepted the possibility of reasonable costs for own-egg and donor-egg surrogacy. By three to two the Court also allowed recovery in principle for lawful commercial surrogacy abroad, subject to the safeguards and reasonableness requirements it identified.
