On 1 April 2020 the Supreme Court handed down judgment in the case of Whittington Hospital NHS Trust (Appellant) v XX (Respondent)  UKSC 14 (‘Whittington’).
Edward Faulks QC appeared for the Appellant Hospital and was instructed by Bevan Brittan LLP.
The judgment provides an interesting analysis of the limits of compensatory damages in tort where the head of loss claimed might be considered to be against public policy.
The Claimant was a young woman who had been born in 1983. She had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012 that were negligently wrongly reported by the Hospital (liability was admitted). In 2013, when the errors were detected, her cervical cancer was too far advanced for her to have surgery. Instead, she was advised to have chemo- radiotherapy, which would result in her being unable to have children. Before having the treatment, she had eight eggs collected and frozen.
The issue under appeal related to the damages payable for the loss of the Claimant’s ability to have a child. She and her partner wanted to have four children using a commercial surrogacy arrangement in California (two with her own eggs and two with donor eggs). Fee-paying arrangement are unlawful in the UK but there is nothing in the criminal law stopping prospective parents from entering into a commercial agreement abroad. In the UK surrogacy is permitted on a non-commercial basis where reasonable expenses can be paid. Alternatively, if this claim was unsuccessful she intended to use non-commercial arrangements in the UK.
At first instance the judge held that, following Briody v St Helen’s & Knowsley Area Health Authority  EWCA Civ 1010;  QB 856 (‘Briody’), the claim for commercial surrogacy must be rejected as being contrary to public policy, and that surrogacy using donor eggs did not restore the Claimant’s to her pre-tort position (i.e. it did not restore her fertility or provide her with a genetically-related child) and as such no damages would be awarded. However, damages could be awarded for two own-egg surrogacies in the UK.
The Claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The Hospital cross-appealed against the award for the two own-egg surrogacies. The Court of Appeal dismissed the cross-appeal and allowed the appeal on both points. The Hospital then appealed to the Supreme Court.
The appeal raised three issues.
- Can damages to fund surrogacy arrangements using the claimant’s own eggs be recovered?
- If so, can damages to fund arrangements using donor eggs be recovered?
- In either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?
In a rare majority decision, the Supreme Court dismissed the appeal. Lady Hale gave the majority judgment, with which Lord Kerr and Lord Wilson agreed. Lord Carnwath gave a judgment dissenting on issue three only, with which Lord Reed agreed.
The case of Briody was central to the appeal. In that case, owing to medical negligence, the claimant underwent a sub-total hysterectomy when aged 19, she having lost two babies in quick succession. Her ovaries were left intact. Many years later, she brought proceedings claiming damages for, among other things, the cost of a Californian surrogacy. Ebsworth J rejected both proposals, partly because the chances of success using her own eggs were so low and partly because commercial surrogacy was not lawful here. By the time the case reached the Court of Appeal, however, eggs had been successfully recovered from the claimant and fertilised with her partner’s sperm. There were then six embryos in storage. Nevertheless, the chances of success were still no more than 1%.
On appeal to the Court of Appeal, on the Californian proposals, Lady Hale, delivering the lead judgment, found that they were “contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it”. Further and in any event she found that it would not be reasonable to expect the defendant to pay for the implantation of the claimant’s embryos when this had such a slim chance of success. As to a surrogacy using donor eggs, she found that this was “not in any sense restorative of Ms Briody’s position before she was so grievously injured. 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”.
In Whittington, Lady Hale, also delivering the lead judgment for the majority noted that the Court was not bound by the ratio of Briody, and that the persuasiveness of that ratio has been adversely affected by the developments in law and social attitudes which had taken place since then. Lady Hale at [28-39] set out the numerous ways in which the law and social attitudes had changed since the decision in Briody to encompass a far wider definition of ‘family life’ and to give women greater autonomy over the decision to put themselves forward as a surrogate.
Lady Hale (with whom all members of the Court agreed on this issue) did not consider that the case involved consideration of the illegality defence as nothing which the Claimant proposed to do involved a criminal offence either here or abroad. As such, the normal principles of compensatory damages applied. Damages in tort seek to put the injured party in the position she would have been in had she not been injured; but they cannot be recovered where it would be contrary to legal or public policy, or unreasonable.
Lady Hale found on the first issue that Briody did not rule out the award of damages for own- egg surrogacy arrangements made in the UK. Whether it was reasonable to seek damages for this head of loss depended on the chances of a successful outcome. In the Claimant’s case those chances were reasonable (unlike in Briody).
On the second issue, the view expressed in Briody, that damages for donor-egg surrogacy arrangements could not be recovered as they were not restorative of what the Claimant had lost, was probably wrong then, and was certainly wrong now due to the development of legal and social attitudes towards surrogacy and family life. This aspect of Briody was therefore overruled.
On the third issue she found that UK courts will not enforce a foreign contract if it would be contrary to public policy, but due to the developments in law and social attitudes she found that it was no longer contrary to public policy to award damages for a foreign surrogacy arrangement provided that certain limiting factors applied (predominantly centred on adequate safeguarding of the child).
Lord Carnwath’s dissenting judgment (with which Lord Reed agreed) differed from the majority on the third issue only. In his view, it would offend the principle of legal coherence for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law.
Given that Briody was decided less than 20 years ago it is striking that the court in Whittington reached the opposite conclusion.
In relation to the first issue, the case clarifies that claimants will now have to prove a reasonable chance of success of the surrogacy if recovery of damages for own-egg surrogacy arrangements is to succeed. It is not clear what a ‘reasonable chance’ actually means. In Briody, the chances were less than 1%, clearly unreasonable, but it is not clear where the line of reasonableness is to be drawn. On the balance of probabilities? Or something less?
In relation to the second issue, Lady Hale made the courageous call to overrule her own decision in Briody on this point. In her last case in the Supreme Court she conclude not only that the decision could not stand in light of the legal and societal developments since 2000 but also that the decision was likely to have been wrong at the time it was decided. It is clear now that there is nothing in principle barring a woman recovering damages for the cost of donor-egg surrogacy arrangements.
However it was the third issue that was the most controversial, as evidenced by the slim majority decision. There is certainly something unsatisfying in the majority’s reasoning which must stem from the conflict between the criminal law (which is supposed to embody public policy towards certain issues) on the one hand preventing commercial surrogacy arrangements in the UK, and the majority’s decision that public attitudes are no longer in principle against such arrangements.
The effect of the decision is that whilst it is illegal to enter into a fee-paying arrangement in the UK, it is not illegal for UK-based prospective parents to procure such an arrangement abroad. There can be no moral or societal justification for this distinction. Either public policy dictates that as a society we have decided not to allow a fee-paying process, whether at home or abroad, or we have not. Lord Carnwath makes the point that the (historically at least) best yard-stick for gauging public policy is that contained in the criminal law, which in this country prohibits such agreements. The majority’s decision to instead turn to other evidence to identify the public policy in relation the issue suggests that the majority were of the opinion that the criminal law itself was out of date and needed reform.
Parliament has legislated on surrogacy on a number of occasions. It has not so far chosen to make commercial surrogacy agreements lawful. On the basis of the recent Law Commission consultation, there is not much of an appetite to change the position. It must be at the very least questionable whether the Supreme Court should be in effect sanctioning an arrangement which parliament has chosen to make unlawful. BA polite way of casting doubt on the decision was that chosen by the minority who emphasised the need for coherence in the law. A less polite interpretation of the decision was that the Supreme Court chose to ignore parliamentary sovereignty and decide a public policy question for themselves.
The judgment marks a significant departure from the previous position and it is to be expected that claims for surrogacy arrangements, whether through donor eggs domestically, or through foreign commercial agreements, will be much more common in the future. It appears that offending the criminal law may be no bar to the recovery of damages if the court thinks on the facts that an award is reasonable.