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Policy and the law: surrogacy and the costs of upbringing

Posted on 14th January 2019

An interesting case has been decided in the Court of Appeal that reinforces the fundamental principle that, when it comes to an award for damages, the Claimant is entitled to be put back into the position they would have been (as far as possible) had the negligence not occurred.

In XX v Whittington Hospital NHS Trust, the claimant was successful in her appeal against a decision not to award her damages for the expense of surrogacy to be carried out in the US, as a result of the defendant’s delayed cancer diagnosis, which had rendered her infertile. The Court of Appeal held that the Surrogacy Arrangements Act 1985 sought only to render commercial surrogacy businesses in the UK unlawful; a notional aversion to lawful acts abroad was excessive. The truly restorative nature of a damages award would be to put the claimant as close as possible to the situation she would have been in, prior to the torts.

The Court explored the doctrines of illegality and public policy at some length and the judgement makes for interesting reading, showing how the law can develop alongside changes in social attitudes that would otherwise render the notion of ‘public policy’ too rigid and inflexible.

This is in contrast to the Court of Appeal case of ARB v IVF Hammersmith where the claimant’s appeal in respect of his claim for breach of contract against the respondent IVF clinic was dismissed. The clinic had implanted an embryo containing the appellant’s gametes into his former partner (R), from whom the appellant had, by then, separated, without the appellant’s consent (his signature having been forged). R had later given birth to a child. The Court of Appeal ruled, among other things, that the legal policy which prevented recoverability of the cost of the upbringing of a healthy child tortious claims applied to the appellant’s claim for breach of contract.

The appellant and his barrister Michael Mylonas QC spoke on the Today programme on Radio 4 about the effects of the breach of contract and the lack of a remedy.

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