Surrogacy as a head of loss part 2: donor eggs and commercial surrogacy arrangements

Back in November 2017 I wrote about the case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318. I concluded my previous blog with: “given the comments by the Judge could it be that further developments in this area of law are on the cards?”. Whilst I do not profess to have a track record akin to Paul, the World Cup result predicting octopus (26 January 2008 – 26 October 2010), further developments in this area of law have indeed occurred thanks to the Court of Appeal.

What happened first time around?

 Before reviewing the Court of Appeal’s decision, it is worth revisiting the headline points of the High Court’s judgment. At first instance, XX received £74,000 for the cost of two surrogacies in the UK; however, XX

1. was denied damages with respect to the costs of a commercial surrogacy arrangement in California; and
2. was limited to the costs of a surrogacy in the UK that used XX’s own eggs, not those of a donor.

In reaching the above conclusions, the High Court felt bound by the previous decision of Briody v St Helens & Knowsley Area Health Authority [2001] EWCA Civ 1010 (with respect the use of donor eggs). The Judge also considered that commercial surrogacy arrangements were still illegal in the UK and thus contrary to public policy and whilst attitudes in the UK may have changed towards surrogacy costs, it was for the Law Commission and Parliament, or perhaps the Supreme Court, to bring about any changes to the law.

Why did the parties appeal?

XX elected to appeal the decision of the High Court and asked to the Court of Appeal to consider:

1. If the Judge was correct in refusing to allow her claim for expenses associated with a Californian surrogacy;
2. Whether the Judge was correct in law to differentiate, when considering the costs associated with a UK surrogacy, between the use of XX’s own eggs and those of a donor; and,
3. Depending on the Appeal Court’s decision with respect to the above, to what extent should there be a reduction to XX’s previously awarded damages for pain, suffering and loss of amenity (PSLA).

Whittington Hospital cross appealed and sought to reverse the Judge’s decision to award damages in respect of the non-commercial UK surrogacy and, if they did not succeed on this point, the hospital sought to reduce XX’s PSLA damages.

Perhaps somewhat unusually, the first instance Judge granted XX permission to appeal on the questions of recoverability of damages for the commercial surrogacy in California and the costs of the surrogacy using donor eggs. Perhaps this was indicative of his feelings that the law in this area did in fact need to change and the High Court simply did not have the judicial clout to deal with it. In giving his permission, the Judge noted that there had been changes in social attitudes since Briody and changes in statute with respect to the care of a surrogate child.

What happened next?

Californian Surrogacy: illegality and the recoverability of damages

In its Judgment, the Court of Appeal first turned to XX’s primary claim to recover the expense of the Californian surrogacy arrangement. The hospital submitted that the Judge had been correct in his decision not to award XX these costs. Their barristers noted that surrogacy arrangements were a complex arear of law and policy and the Courts should not pre-empt advice from the Law Commission nor anticipate what Parliament may subsequently do: namely, the law should be reticent to express an opinion on public policy points.

The barristers representing XX argued that the scope of the decision in Briody was in fact narrower than the Judge had concluded: simply that, because the prospects of a successful surrogacy in that case were so “vanishingly small” any award of damages was not reasonable. Any public policy points advanced in Briody were not the reason for the decision and, therefore, not binding. They also noted that since Briody there had been various amendments to UK legislation surrounding surrogacy and public policy had, therefore, shifted: in particular, Parliament has permitted the family courts to sanction overseas surrogacy arrangements by way of “parental orders”, including the sanction of payments in the context of such orders.

The Court of Appeal was therefore faced with a difficult decision: the world had moved on since Briody, but the law had not, consistently, kept in step. The Court of Appeal, therefore, concluded that the law no longer required XX to be barred in her recovery of damages, as the public policy reasons for that bar arguably no longer existed.

“Own egg” vs “Donor egg”

Again, this required the Court of Appeal to review the decision of Briody and to consider whether the use of “donor eggs” was truly restorative of a claimant’s position. XX drew an analogy that the use of a “donor egg” is akin to a claim for a prosthetic limb: the prosthetic is not truly yours, but it is the best compensation possible. The Court of Appeal agreed with this approach and concluded that to distinguish between “own egg” and “donor egg” surrogacy, which employed the partner’s sperm, would be an entirely artificial distinction. Again, the Court of Appeal were happy to depart from Briody.

Reduction in PSLA

As XX had been successful with respect to both of her appeal grounds, her PSLA award was reduced. This was because the High Court had previously increased her PSLA to take into account the fact her Californian surrogacy claim had failed.

What happens now?

In reaching their decision the Court of Appeal was keen to stress that the case of XX should not be taken to mean that in every case a claimant can expect such awards. In particular, the Court had not been asked to consider whether XX’s hope to achieve a 4-child family was reasonable in the circumstances or whether the various surrogacies and medical steps were a reasonable way of achieving that result. It was hinted that these types of issue may be raised in future cases so any claimant seeking to claim the costs of a surrogate will need to demonstrate that such a step was reasonable. It will be interesting to see if defendants will argue that a couple’s wish to have a certain number of children is unreasonable and/or that they should consider alternative “cheaper” options!