Supreme Court rules that costs of commercial surrogacy can be recoverable

Last week the Supreme Court made the landmark decision that awards for damages to cover the costs of foreign commercial surrogacy, using donor eggs, can now be recoverable under certain circumstances. The decision overturned the Court of Appeal decision in Briody v St Helen’s and Knowsley Area Health Authority (2001) and serves to reflect changing attitudes towards what constitutes ‘family’ in the UK.

Background

The Claimant had cervical smear tests performed at Whittington Hospital NHS Trust (the Hospital) in 2008 and 2012. Both tests were negligently reported, failing to detect the Claimant’s cervical cancer.

In 2013, when the cancer was detected it was too far advanced for surgery and instead chemo-radiotherapy was required, which resulted in the Claimant being unable to bear her own children. Had the Claimant’s cancer been detected in time for surgical treatment, she would have been able to bear children. The Hospital admitted liability for performing the negligent smear tests and failing to detect the Claimant’s cancer on time.

The Claimant froze eight of her eggs and wanted to arrange for commercial surrogacy (where monetary payments are made to the surrogate party via third parties) in California. The Claimant sought damages payable for the loss of ability to bear her own child in order to fund this surrogacy. If the damages were not awarded, the Claimant stated her intention was to use non-commercial surrogacy (where a friend or family member carries the child) arrangements in the UK.

Legal issues and previous judgments

The legal issues the Supreme Court considered were:

1. could damages to fund surrogacy arrangements using the Claimants’ own eggs be recovered?
2. could damages to fund the use of donor egg surrogacy be recovered?
3. could damages to fund the cost of foreign commercial surrogacy arrangements be recovered?

In answering these questions, the Court had to consider the earlier Court of Appeal decision in Briody, where a claim for damages to fund foreign commercial surrogacy using donor eggs was rejected. In that case, Lady Justice Hale (as she then was) rejected the damages claim on the basis that it was contrary to tortious principles, i.e. the use of donor eggs could not be considered restorative of the claimant’s fertility. It was also held that damages for foreign commercial surrogacy would be contrary to public policy.

In the first-instance decision, Sir Robert Nelson followed the guidance of Briody and held that awarding damages would be contrary to tortious principles and public policy. However, the judgment allowed for damages payable in relation to own-egg surrogacy in the UK.

The Court of Appeal allowed the Claimant’s appeal on the grounds that attitudes to commercial surrogacy and what constitutes a ‘family’ had changed over time. It was held that the use of donor eggs could be considered restorative and damages were awarded. The Hospital subsequently appealed.

Supreme Court decision

The Supreme Court dismissed the Hospital’s appeal by a majority decision delivered by Lady Hale, which confirmed Briody was not binding on the Court. The Court resolved the legal issues as follows:

1. On the first issue, it was noted that Briody did not dismiss an award for damages for own-egg surrogacy in the UK but stated they should be awarded where the prospects of success are reasonable. In this case, Lady Hale confirmed the prospects of success were reasonable and it was “difficult to see why the claim should not succeed”.
2. On the second issue, the view in Briody that donor egg surrogacy could not be considered restorative for tortious principles was held to be “probably wrong then and is certainly wrong now” based on developments in the law and society as to what constitutes a ‘family’. Lady Hale held that where the prospects of success were reasonable, damages for the reasonable costs should be awarded.
3. On the third issue of foreign commercial surrogacy arrangements, it was found an award for damages would no longer be considered contrary to public policy. This decision was a result of several factors, including changes in government policy and the Law Commission’s proposal for a surrogacy pathway which would allow children born via surrogacy to be recognised as the commissioning parents’ children from birth. However, Lady Hale stressed there were limiting factors to such awards; both the treatment programme and costs must be reasonable, and it must be reasonable for the claimant to seek the foreign commercial arrangements. Such arrangements are only deemed reasonable where the foreign country has a well-established system where everyone’s interests, including the child’s, are properly safeguarded.

Comment

Although the decision opens the door to potential claims in respect of the costs of commercial surrogacy, prospective claimants ought to be aware that strict controls still apply in terms of the ‘reasonableness’ of any costs incurred - which is likely to lead to a subjective, case-by-case analysis. The decision also demonstrates that the courts are being reactive to shifting sociological and technological trends.

Further reading:

Whittington Hospital NHS Trust v XX [2020] UKSC 14.

Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010.