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Whittington Hospital NHS Trust v XX [2020] UKSC 14: Damages are recoverable for foreign commercial surrogacy arrangements - Sam Way, Devereux Chambers

03/08/20. The Supreme Court has reversed the decision of the Court of Appeal in in Briody v St Helens and Knowsley Areas Health Authority [2002] QB 856, and clarified the basis on which damages may be awarded for surrogacy arrangements, including those carried out on a commercial basis in a foreign jurisdiction, an arrangement which involve the commission of criminal offences if carried out in the UK.


The claimant had a series of incorrectly reported smear tests starting in 2008, and two wrongly reported cervical biopsies. The Claimant was diagnosed with cervical cancer in June 2013. The respondent admitted negligence in respect of both the smear test and the biopsies. Had appropriate action been taken in 2008, the Claimant would most likely have not developed cancer at all. By 2013 her cancer was so advanced that the only treatment available as chemo-radiotherapy which left her unable to bear children. Before undergoing that treatment, the Claimant underwent ovarian stimulation and egg collection, yielding eight eggs which could be frozen. The Claimant was therefore able to pursue her desire to have a large family of four children. She intended to have two children using her own eggs, and two using eggs from a suitable donor. The Claimant’s desire was to use commercial surrogacy arrangements in California, and she sought damages for the cost of doing so. The proposed Californian arrangements would have been illegal under the Surrogacy Arrangements Act 1985 had they taken place in the UK, although there was no prohibition on the Claimant travelling to California to carry out those arrangements.

At trial, Sir Robert Nelson rejected the Claimant’s claim for the cost of commercial surrogacy arrangements and for those that made use of donor eggs, considering himself bound by the decision of the Court of Appeal in Briody v St Helens and Knowsley Areas Health Authority [2002] QB 856 that an award of damages for surrogacy using donor eggs was not restorative of the Claimant’s lost fertility and that it was contrary to public policy to award damages for commercial surrogacy arrangements, even if they were carried out in a manner that involved no wrongdoing on the part of the Claimant. He awarded the Claimant damages based on the costs of the proposed two surrogacies that would take place using the Claimant’s own eggs. On the Claimant’s appeal, the Court of Appeal found that they were not bound to follow Briody as public policy had changed since that decision and must be judged in light of the principle of illegality set out in Patel v Mirza [2017] AC 467. The Court of Appeal awarded the Claimant the cost of carrying out all four surrogacies on a commercial basis in California. The hospital appealed to the Supreme Court.

The decision

The Supreme Court dismissed the appeal. Lady Hale, giving the majority judgment, departed from her own decision in Briody in respect of both the...

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