Claiming for the costs of a surrogacy arrangement: A new head of loss?

They say that nothing can prepare you for the sheer overwhelming experience of what it means to be a parent. But how would you feel if that opportunity was taken away from you because of the negligent action of someone else? In the recent case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 XX received £74,000 for the cost of two surrogacies in the UK. This was because XX was unable to bear children as a direct consequence of her delayed diagnosis of cervical cancer.

In English law commercial surrogacy arrangements are viewed as contrary to public policy and are therefore illegal. You can only enter into a legal surrogacy arrangement in the UK where there is no intention to make a profit; although “reasonable expenses” are recoverable. Furthermore, in the UK the surrogate mother choses the intended parent, rather than the other way round (as in California for example). Finally, if a legal surrogacy arrangement is carried out, then the surrogate mother is the legal mother of the child. Intended parents must, therefore, apply the courts in the UK for a Parental Order after the birth.

In this case XX had suffered an injury due to the hospital’s failure to diagnose her cervical cancer in time. Liability was admitted so the trial was on a “quantum” or damages only basis. Prior to undergoing chemotherapy and radiotherapy treatment for her cancer, XX decided to have her eggs frozen. This was because her cancer treatment would damage her uterus and ovaries, thus preventing her from being able to bear and carry a child.

As part of her claim for damages, XX claimed for the costs of a commercial surrogacy arrangement in California, where XX’s partner had family. XX and her partner also wanted to enter into a commercial surrogacy arrangement in California as surrogacy arrangements there are lawful and binding.

In terms of XX’s intended family size, XX’s evidence was that she and her partner both came from large families and wanted four children. She therefore claimed for the cost of four pregnancies, either in California or in the UK, using her own eggs or those of a donor if donor eggs were required to achieve her family of four.

Both parties obtained expert evidence on the likely success rates of any surrogacy. It was agreed between the experts that it was likely on the balance of probabilities that the claimant would achieve two live births, one pregnancy per cycle of six, from her 12 cryopreserved eggs.

In 2001 the Court of Appeal had ruled in Briody that surrogacy claims in English law were against public policy and therefore could not be allowed. Importantly the Court of Appeal left open the question of whether, as in XX’s case, the cost of a surrogacy arrangement using a mother’s own eggs was a recoverable head of claim. Lady Justice Hale, as she then was, did however comment that she thought that such a proposal was a “step too far”.

In XX, the claimant’s legal team submitted that society’s attitudes had changed over the last 15 years and in fact the Courts had started to award sums in excess of “reasonable expenditure” on the basis that such sums were not disproportionate and are arguably not an affront to public policy (see the case of Re C). Furthermore, in order to facilitate legal UK based surrogacy arrangements non-profit agencies had been set up to help families find and pay surrogates i.e. COTS – Childlessness overcome through Surrogacy.

XX’s legal team also cited the Canadian case of Wilhemson v Dumma (2017) BCSC 616 (Can L11), as in Canada commercial surrogacy arrangements are also illegal. In Wilhemson the Court held that a Canadian citizen could recover the costs of a commercial surrogacy arrangement in California as the piece of legislation which precluded commercial surrogacy arrangements in Canada did not apply in California and, therefore, no laws were contravened.

The judge in XX (Sir Robert Nelson) limited her claim and allowed for the costs of surrogacy in the UK but only using XX’s eggs, not those of a donor. Whilst the judge acknowledged that attitudes may have changed, he stated that any changes to the law must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court. The judge also felt bound by the decision in Briody to limit the surrogacy claim to one using XX’s own eggs stating that “The loss that the injured mother sustains is the inability to have her child, not a child” [emphasis added].

XX has set a precedent for claiming damages for UK-based non-commercial surrogacy arrangements; however, given the comments by the judge could it be that further developments in this area of law are on the cards?

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