Landmark decision: Supreme Court grants foreign surrogacy costs

Posted on 14th April 2020

Last week, the clinical negligence case of XX v Whittington Hospital NHS Trust [2020] UKSC 14 reached a landmark decision in the Supreme Court.

This is a long-running case, pursued by a claimant who had been left infertile due to the Hospital Trust’s negligence. The Hospital’s Trust admitted liability for a failure to detect the Claimant’s cervical cancer from smear tests in 2008 and 2012, and biopsies in 2012 and 2013 and that as a result of the delay in diagnosis, the claimant had been left infertile. The main dispute was whether or not the Trust should have to pay for the costs of a commercial surrogacy arrangement in California, when commercial surrogacy is not legal in the UK and which had previously been rejected by the Court of Appeal in Briody v St Helens And Knowsley Area Health Authority [2001] EWCA Civ 1010, on the basis that this would be contrary to public opinion.

The UK law relating to surrogacy

Making surrogacy arrangements on a commercial basis in the UK is in essence, unenforceable. Issues under UK law arise when identifying the legal parent of the child, which in the UK, is the surrogate mother, until a court order is made in favour of the commissioning parents. In addition, the court must also be satisfied that no money or other benefit, other than for expenses reasonably incurred, has been given or received by any applicant for making the arrangements, handing over the child, giving agreement, or making the order, unless authorised by the court

Decision

The Appeal from the Hospital’s Trust was dismissed by a majority, ruling that as long as the surrogacy arrangement had a chance of success, damages for reasonable costs of it may be awarded.

Lady Hale said there had been significant developments in the law’s idea of what constitutes a family, and this was the closest the claimant could get to being in the position she would have been if she had not been injured. Provided the surrogacy arrangement had reasonable prospects of success, damages for reasonable costs may be awarded. In addition, the foreign country in which commercial surrogacy costs were being sought, must have a well-established system safeguarding the interests of all involved.

Significance

This case is significant because it will provide guidance, on a case-specific basis, as to whether or not a claimant can recover the costs of treatment abroad though illegal in the UK. Public perception and what constitutes as a family has changed over the years and this decision will potentially mean a lot for claimants seeking treatment abroad that would otherwise not be possible to receive in the UK.

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