This article originally appeared in Article 5 (May 2020).
In a majority decision, the Supreme Court has confirmed that a claimant is entitled to recover as damages not only the costs of surrogacy using her own eggs, but also the costs of surrogacy using donor eggs, as well as the costs of commercial surrogacy in the US.
The Appellant NHS Hospital Trust had admitted liability for a negligent failure to detect signs of cancer in the Respondent (XX) during routine smear tests performed in 2008 and 2012, and from biopsies performed in 2012. It was admitted that, as a result of the admitted negligence, XX’s cancer diagnosis was delayed so that she lost the opportunity to have the surgery which would have preserved her fertility and her ability to bear her own child. However, the Trust disputed the damages payable to XX as a result of her loss of fertility, specifically the claim for the costs of US commercial surrogacy arrangements and of UK surrogacy arrangements using donor eggs (as opposed to XX’s own eggs which had been collected and stored prior to her cancer treatment). Although it was probable that XX would be able to have two children using her own eggs through surrogacy arrangements (“own egg surrogacy”), she wished to have a further two children, which would require the use of donor eggs (“donor egg surrogacy”). Her preference was for commercial surrogacy arrangements in California rather than in the UK.
In assessing damages at first instance, Sir Robert Nelson held that the claim for Californian surrogacy expenses had to fail as the court was bound by the Court of Appeal decision in Briody v St Helens and Knowsley AHA (Claim for Damages and Costs)  EWCA Civ 1010. In accordance with Briody, commercial surrogacy arrangements remained illegal in the UK under the Surrogacy Arrangements Act 1985 s2(1) and thus it would be contrary to public policy to compensate for such costs. In contrast, non-commercial surrogacy arrangements in the UK were legal and therefore XX would be entitled to recover the reasonable costs for such arrangements. However, again in accordance with Briody, such costs would only be recoverable if they involved the use of her own eggs. The position was different for donor egg surrogacy as that would not be restorative of XX’s loss, which was XX’s inability to have “her” own child, not “a” child. Therefore, XX was awarded the costs of own egg surrogacy in the UK for two children (£37,000 for each surrogacy).
XX appealed against the rejection of her claim for damages for the cost of US commercial surrogacy and for the cost of donor egg surrogacy in the UK. The Trust cross-appealed against the allowance of damages for UK surrogacy expenses (as well as against the level of damages awarded for PSLA). The Court of Appeal declined to follow Briody and allowed XX’s appeal: XX was entitled to recover the costs of commercial surrogacy arrangements in California as well as the costs of surrogacy arrangements in the UK (both with her own eggs and with donor eggs). The Trust’s cross-appeal was partially allowed only in relation to PSLA so that the award was reduced from £160,000 to £150,000 to reflect the fact that an additional award of £15,000 had been made in respect of the commercial surrogacy arrangements in California.
The Trust appealed against the award of damages for the cost of commercial surrogacy arrangements in California and of UK surrogacy arrangements using donor eggs.
The Supreme Court affirmed the decision of the Court of Appeal and dismissed the Trust’s appeal, holding unanimously that XX was entitled to recover the costs of surrogacy arrangements using her own eggs as well as donor eggs. By a majority of 3:2, the Supreme Court also held that XX was also entitled to the costs of the commercial surrogacy arrangements in California.
Lady Hale gave the majority judgment, with which Lord Kerr and Lord Wilson agreed. Lord Carnwath gave a dissenting judgment, with which Lord Reed agreed, on the issue of recoverability of damages for commercial surrogacy only.
Recoverability of costs of surrogacy arrangements using own eggs vs donor eggs
As Lady Hale noted, the UK law on surrogacy was “fragmented and in some ways obscure” and surrogacy arrangements were “completely unenforceable”. However, there had been “quite dramatic” developments in attitudes to assisted reproduction and in the law since the Court of Appeal decision in Briody in 2001. In particular, amendments to the Surrogacy Arrangements Act 1985 introduced by the Human Fertilisation and Embryology Act 2008 meant that non-profit bodies can now initiate (although not actually take part in) negotiations and facilitate surrogacy arrangements for reasonable payment. Nevertheless, commercial surrogacy agencies remain banned from receiving money for surrogacy arrangements, whether from the surrogate or commissioning parents. However, the offences could only be committed in the UK so that there was nothing to stop agencies based abroad from helping to make commercial surrogacy arrangements abroad. Nor was there anything to stop commissioning parents and surrogates from making arrangements directly, whether in the UK or abroad and even on a commercial basis. Any such agreements would be unenforceable however and could result in the refusal of a parental order in favour of the commissioning parents subsequently. In contrast, commercial surrogacy is well-established, with the arrangement being binding and enforceable so that it was “scarcely surprising” that XX’s preference was for a Californian commercial surrogacy arrangement.
The Supreme Court was not bound by the Court of Appeal’s ratio in Briody but, in any event, Briody did not rule out the award of damages for surrogacy arrangements made on a lawful basis in the UK using own eggs. Rather, Briody held that whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome. The law permitted damages for the cost of surrogacy arrangements using own eggs in the UK. More dramatically, there have been developments in “the law’s idea of what constitutes a family”, including the recognition of male same-sex couples, so that there is a spectrum of surrogacy arrangements and the use of donor eggs in fertility treatment has become more acceptable and widespread.
Lady Hale went on to address whether it is possible to claim damages for UK surrogacy arrangements using donor eggs and addressed head-on her own comments in Briody that the use of donor eggs was “not truly restorative of what the claimant had lost.” She stated plainly that it did not matter whether her comments were technically obiter or not as in her view “it was probably wrong then and is certainly wrong now.” Similar to a claimant who has lost a limb is entitled to claim for the cost of an artificial limb, XX was being supplied with “a replacement womb”, albeit temporarily, in order to compensate her for not being able to have a child. Therefore, subject to reasonable prospects of success, damages can also be claimed for the reasonable costs of UK surrogacy using donor eggs.
Recoverability of costs of commercial surrogacy arrangements abroad
As to the “most difficult question” of the recoverability of costs of foreign commercial surrogacy, the court was divided. The court had the advantage of comparing the costs of UK and Californian surrogacy and found that most items in the bill for Californian surrogacy would be recoverable if the surrogacy had taken place in the UK, albeit at higher costs (e.g. the fee to the surrogate mother in California is higher than the reasonable expenses paid to surrogates in the UK). Although commercial surrogacy arrangements were not enforceable in the UK, Californian surrogacy was lawful in the US and, as indicated above, UK law did not preclude agencies from facilitating commercial surrogacy arrangements abroad in a country where it was not unlawful. Nor was it illegal under UK law to enter into such arrangements. Additionally, bearing in mind all the developments since Briody, the fact that the courts now “bend over backwards” to recognise the relationships created by surrogacy, including foreign commercial surrogacy, and the fact that the Law Commissions have provisionally proposed that a surrogate child should be recognised as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model but with greater safeguards. The majority therefore held that it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.
Lady Hale made clear a number of important caveats to the availability and extent of such awards. First, the proposed programme of treatments must be reasonable. Second, it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK. This is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded. Third, the costs involved must be reasonable.
The dissenting speech
Whilst Lord Carnwath agreed that the Court was not bound by Briody and that there was nothing illegal about XX travelling to California for the purpose of surrogacy arrangements or in the commercial surrogacy arrangements being made from the UK, in his dissenting speech, he disagreed with the majority as to whether the costs of such arrangements should be recovered. He analysed the issue not through the prism of illegality but instead through the prism of the broader principle of legal coherence. In his view the case was not concerned with illegality and therefore Mirza v Patel was not relevant. Rather, there was a need to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Although society’s approach to surrogacy has developed, there has been no change in the critical laws on commercial surrogacy, which remained prohibited in the UK and which led to the refusal in Briody of damages on that basis.
This decision is to be welcomed as bringing the law of damages in relation to commercial surrogacy up to date to reflect the changes in attitudes and legislative developments since Briody so that a woman like XX could be compensated for the reasonable costs of surrogacy arrangements, regardless of whether the surrogacy involves her own eggs or donor eggs. Lord Carnwath’s dissenting speech, however, is a reminder that views on surrogacy are not uniform and that, notwithstanding Law Commissions proposals, the regulation of surrogacy arrangements in the UK is more stringent than they are in places like California. As observed by William Edis QC in his detailed and insightful analysis of this case on ukhumanrightsblog.com, the fact that the operation of commercial surrogacy agencies in the UK remains unlawful and the fact that costs recoverable for surrogacy arrangements are lower in the UK than in California may be a source of disquiet, particularly when the treatment sought is available more cheaply in the UK.