The Court of Appeal yesterday handed down an important decision in the case of XX -v- Whittington Hospital NHS Trust [2018] EWCA Civ 2839 concerning the recoverability of surrogacy costs when a claimant is rendered unable to have children naturally.

The Respondent had admitted negligence in failing to detect signs of cancer in smear tests carried out on the Appellant, Ms X, in 2008 and 2012, as well as in biopsies performed in 2012 and 2013. Having developed cervical cancer, Ms X underwent chemo-radiotherapy treatment, which in turn led to a complete loss of fertility and severe radiation damage to her bladder, bowel and vagina. In 2013, Ms X underwent a cycle of ovarian stimulation and egg harvest. This procedure produced twelve eggs, which were then cryopreserved. Ms X had very much desired to have children. She and her partner decided to have their own biological children either by way of commercial surrogacy carried out in California or non-commercial surrogacy in the United Kingdom.

Ms X made a claim against the Hospital Trust, including a claim for special damages specifically to cover the expenses of commercial surrogacy arrangements in California or, alternatively, non-commercial surrogacy in this country. Ms X claimed the cost of four pregnancies using her own eggs or, if necessary, donor eggs and her partner’s sperm. The matter came before a judge of the High Court in June 2017. Expert consultant gynaecologists gave evidence that, on the balance of probabilities, Ms X would achieve either one or two live births from her own cryopreserved eggs. Their evidence was that donor eggs would present a slightly lower prospect of success.

The trial judge refused Ms X’s recovery of damages for the costs of Californian surrogacy. He concluded that he was bound by the earlier Court of Appeal decision of Briody v St Helens and Knowsley Area Health Authority [2002] QB 856: since commercial surrogacy arrangements are illegal in the United Kingdom, they are contrary to public policy and Ms X’s claim for expenses to fund surrogacy in California had to fail. It did not matter that such surrogacy would be lawful in California. Societal attitudes to commercial surrogacy may have changed since the case of Briody, but the judge held that such changes would have to follow through Parliament or the Supreme Court. However, he did hold that Ms X could recover limited expenses for surrogacy in the United Kingdom, using her own eggs. The damages were limited to expenses for UK surrogacy using Ms X’s own eggs and not those of a donor

Ms X appealed to the Court of Appeal on two issues: the recoverability of damages for commercial surrogacy in California and the recoverability of damages for the cost of surrogacy using donor eggs. The Hospital Trust appealed against the trial judge’s allowance of the claim for non-commercial surrogacy expenses in the UK, and also against his finding as to the level of damages for PSLA. The Court of Appeal unanimously allowed Ms X’s appeal on both points and dismissed the Hospital Trust’s cross-appeal.

The full judgment can be found here.

This is an important judgment for clinical negligence and personal injury practitioners and perhaps reflects a societal change in attitude towards surrogacy arrangements and the need to try and put a claimant back to a position as close as possible to where she would have been but for the negligent acts.

Richard Grimshaw undertakes a broad spectrum of clinical negligence and inquest work acting on behalf of both claimants and defendants. Richard has experience of trials (both on his own and as led junior counsel), interlocutory and approval hearings in clinical negligence matters, as well as inquests (including Article 2 inquests and inquests held with a jury). He is ranked by Chambers UK Bar 2019 and Legal 500 2019 for his clinical negligence work.

This article is provided for information purposes only and does not constitute legal advice.