XX v. Whittington Hospital NHS Trust (2020): Paving the Way for Commercial Surrogacy Cost Recovery
In the realm of personal injury law, landmark decisions often reshape the landscape, impacting future cases and setting new precedents. One such pivotal case is XX v. Whittington Hospital NHS Trust [2020] UKSC 14. This Supreme Court ruling has far-reaching implications, particularly concerning the recovery of commercial surrogacy costs in instances of medical negligence leading to infertility.
The Tragic Backstory
The case centered around a claimant, XX, who suffered from cervical cancer due to the Whittington Hospital NHS Trust’s negligence in misreporting her cervical smear tests. This negligence resulted in a delayed diagnosis, necessitating chemo-radiotherapy treatment that rendered her infertile. XX and her partner, who had always envisioned having a large family, sought to have four children through surrogacy.
Given her infertility, surrogacy became their only option to have children with a genetic connection to at least one of them. They planned for two children using XX’s eggs and two using donor eggs. The couple preferred commercial surrogacy in California, where the legal framework offers intended parents more security, as the surrogate is not considered the legal mother. In contrast, UK law designates the surrogate as the legal mother, potentially leading to legal complications.
Legal Hurdles and the Public Policy Debate
The case initially faced significant legal challenges. The High Court, bound by the precedent set in Briody v St. Helen’s and Knowsley Area Health Authority [2001], rejected the claim for commercial surrogacy costs in California, deeming it contrary to public policy. The Briody case had established that damages for donor-egg commercial surrogacy arrangements were not recoverable because they were not restorative and commercial surrogacy was against public policy in the UK.
However, the Court of Appeal overturned this decision, recognizing that public attitudes toward surrogacy had evolved considerably since 2001. The hospital then appealed to the Supreme Court.
A central issue was whether awarding damages for commercial surrogacy, which is unlawful in the UK under the Surrogacy Arrangements Act 1985, would violate public policy. While UK law permits surrogacy, it only allows for reasonable expenses to be paid to the surrogate, not commercial fees. Section 2(1) of the Surrogacy Arrangements Act 1985 bans third parties from initiating or participating in surrogacy negotiations on a commercial basis.
The Supreme Court’s Landmark Decision
In a groundbreaking decision, the Supreme Court, by a majority of 3 to 2, dismissed the appeal by the Whittington Hospital NHS Trust. The court ruled that it was no longer against public policy to award damages for foreign commercial surrogacy arrangements. This decision marked a significant departure from the Briody precedent.
Lady Hale, in her leading judgment, emphasized the changed public attitudes towards surrogacy and the increasing recognition of diverse family structures. She noted that surrogacy arrangements are now more common than in 2001 and that government policy has moved towards supporting surrogacy in suitable cases. The court also considered that XX was not committing any offense by entering into a commercial surrogacy arrangement in California, where it is legal and well-regulated.
The Supreme Court considered several factors:
- Many costs associated with Californian surrogacy would be claimable as ‘reasonable’ expenses in the UK, even if the amounts were higher in California.
- UK legislation does not explicitly prohibit individuals from entering into commercial surrogacy agreements abroad.
- In California, commercial surrogacy arrangements are legal, well-established, and offer intended parents greater legal certainty.
The court stressed that while UK courts would not enforce commercial surrogacy contracts, this did not preclude awarding damages to cover the costs.
Dissenting Voices
It is important to note that the Supreme Court’s decision was not unanimous. Lord Carnwath and Lord Reed dissented, arguing that awarding damages for commercial surrogacy would be inconsistent with legal coherence and that the Briody case was correctly decided.
Implications and Future Directions
XX v. Whittington Hospital NHS Trust has significant implications for personal injury claims involving infertility caused by negligence. It establishes that claimants can recover damages for commercial surrogacy costs incurred in jurisdictions where it is legal, such as California. This decision acknowledges the evolving social attitudes toward surrogacy and recognizes the right of individuals to form families through assisted reproductive technologies.
This ruling does not make commercial surrogacy legal in the UK. Surrogacy Arrangements Act 1985 still prohibits commercial surrogacy arrangements within the UK.
Following this ruling, the Law Commission is expected to consider the Supreme Court’s prevailing view when formulating recommendations after public consultation.
Navigating the Complexities of Surrogacy Law
Surrogacy law remains complex and varies significantly across jurisdictions. Seeking legal advice from experienced family law and fertility law specialists is crucial for individuals considering surrogacy, whether in the UK or abroad.
Disclaimer: This blog post provides general information and does not constitute legal advice. If you have specific legal questions, please consult with a qualified attorney.