Background

XX was diagnosed with cervical cancer in 2013. At that stage, it was found that several smear tests and cervical biopsies which she had done previously had been incorrectly interpreted.

The first error took place in 2008, at which stage XX did not have cervical cancer but had severe dyskariosis (pre-cancerous cell changes). Had this been diagnosed and treated correctly at that time, there would have been a 95% chance she would not have gone on to develop cancer at all.

By June 2013, when the diagnosis of cervical cancer was made, XX's condition was too advanced for her to have surgery to preserve her ability to bear a child herself. However, she was able to have some of her eggs collected and frozen for future use.

XX and her partner wished to have four children. Expert evidence obtained in the case was that she could probably have two children using her eggs and her partner’s sperm. XX wished to then have another two children using donor eggs and her partner's sperm.

As XX was unable to carry a child herself, she sought compensation to pursue a surrogacy arrangement and, in particular, an arrangement in California, USA. Unlike the UK, California supports 'commercial' surrogacy and is a popular choice for UK-based parents due to its favourable surrogacy laws.

What the Court decided

Whittington Hospital NHS Trust admitted negligence but disputed the amount of compensation which should be paid to XX. Following a hearing at the High Court, a judge did not allow compensation for the costs of commercial surrogacy abroad nor any form of surrogacy using donor eggs. The Court did, however, allow compensation for the estimated costs of non-commercial surrogacy in the UK using XX’s own eggs (in the sum of £74,000.00 to cover two pregnancies).

Both XX and the NHS trust appealed the decision to award compensation for own-egg surrogacies. After the Court of Appeal decided in favour of the claimant, the NHS trust then appealed to the Supreme Court.

In an earlier case (Briody v St Helen’s and Knowsley Area Health Authority), the Court of Appeal had decided that commercial surrogacy arrangements in California were "contrary to the public policy of this country… and that it would be quite unreasonable to expect a defendant to fund it.” It also decided that surrogacy using donor eggs was not in any sense restorative of Ms Briody’s positon… It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers.”

That decision wasn't binding in XX's case and the Supreme Court decided that it did not reflect developments in the law and in social attitudes since the earlier claim was heard. The majority of the Supreme Court decided that:

  • It was reasonable to seek to ‘remedy’ the loss of a womb through surrogacy, if the prospects of successful pregnancies were reasonable.
  • Nothing that XX proposed to do involved her committing a criminal offence either in the UK or abroad. Relationships created by surrogacy, including foreign commercial surrogacy, had been recognised by the courts and the use of assisted reproduction techniques were now socially acceptable. In this context, it was no longer contrary to public policy to award compensation for the costs of foreign commercial surrogacy.
  • However, such compensation would only be awarded where the proposed treatments were reasonable, where it was reasonable for the Claimant to seek foreign commercial arrangements rather than make arrangements within the UK and where the costs themselves were reasonable.

The clinical negligence lawyer’s perspective

Under English law, the starting point is that if a person has been injured as a result of negligence then they are entitled to compensation to put them back in the position which they ought to have been in had the negligence not occurred, so far as money can do so. However, a defendant is not required to compensate for any and all expenses that the injured person might incur as a result of the negligence. There is also the test of whether it is 'reasonable' for them to have to pay those costs.

Here, the first of these issues raised the matter of whether a person whose ability to carry a child could have that ability 'restored' to them through surrogacy, with or without the use of donor eggs. As Lady Hale pointed out, this evokes the question: what constitutes a family?

Some would balk at this being a question that the courts have the power to decide. However, courts are often called upon to decide who has the legal rights and responsibilities of parenthood in a given situation.

From a clinical negligence lawyer's standpoint, the issue here is slightly different. Here, the Court was not called upon to decide whether XX would be the legal mother of any children resulting from the use of donor eggs and/or surrogacy. Rather, it had to decide what compensation a defendant should have to pay in order to try and put XX back in the position she should have been in, had she not been deprived of the ability to personally carry a child.

Having reached the conclusion that compensation for the costs associated with using donor eggs and/or surrogacy could be said to restore XX’s ability to have a child, the Supreme Court still had to consider whether it was reasonable for the Defendant to have to pay these costs. It decided that it was, as long as certain conditions were met.

The Supreme Court’s decision certainly opens the door to claims for compensation for various types of assisted reproduction and surrogacy where a person’s fertility and/or ability to carry a child have been affected by negligence. However, it has also made it clear that the door can be shut in particular cases, where the proposed arrangements or the costs of these were considered unreasonable. There seems little doubt therefore that this will continue to be a contentious issue in clinical negligence cases in future.   

The surrogacy lawyer’s comments

Surrogacy is legal in the UK but there are various rules and restrictions relating to its operation and any agreement/contract is unenforceable so arrangements are based on trust and good solid relations. UK surrogates are also expected to be paid not more than their 'reasonable expenses' although there is no definition in law about what reasonable expenses are or how much they should be. To add to this murky landscape is the legal parenthood position following surrogacy as it is the surrogate, as the person who gives birth, who is treated as the child’s legal parent and if she is married or in a civil partnership, her spouse will automatically be treated as the second legal parent.

As a result, there is a real shortage of surrogates in the UK and the lack of legal certainty drives UK parents overseas to embark on international commercial surrogacy, where there are more favourable surrogacy laws and everyone is better protected from start to finish.

The US, and in particular California, is a well-established commercial surrogacy destination and a popular choice for UK-based parents. Surrogacy agencies operate for profit, enabling them to screen and vet surrogates and intended parents thoroughly. Surrogacy contracts detailing the compensation payments to the surrogate are legally enforceable and parents, rather than the surrogate and her spouse, are the legal parents immediately from birth. As a result, there are more surrogates.

In the past, the UK has taken a strong stance against commercial surrogacy arrangements but with a rise in UK parents going overseas, the Family Court is routinely asked to authorise the payments retrospectively as part of the post-birth parental order process (which transfers legal parenthood to the parents following surrogacy) once they return to the UK. The Supreme Court acknowledged this in its judgment and noted that the Family Court has never refused to make a parental order on the basis of commercial payments being made.

The Supreme Court’s decision to award XX compensation to pursue an arrangement in California has not changed UK surrogacy law, but it has highlighted that international commercial surrogacy is no longer contrary to public policy and it is absolutely legal for UK parents to grow their families in this way. With surrogacy on the rise, the decision in this case sends a very clear and positive message to UK parents who plan to grow their family through international surrogacy and in particular, to those who plan to do so in well-regulated destinations where there are laws that protect all involved.