Cross border developments; future surrogacy costs as a head of claim

The recent case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) is the first time the Court has allowed the cost of future surrogacy arrangements as a head of claim in a Personal Injury Action.

Although this is an English case heard by Judge Sir Robert Nelson in the High Court of Justice Queen’s Bench Division the legislation considered, namely the Human Fertilisation & Embryology Act 2008, applies to the UK as a whole and fertility law in itself is a reserved matter. As such it will be interesting to see what impact this case has on cases north of the border.

In this case XX had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. Due to the hospital’s negligence XX went on to develop particularly invasive cervical cancer which resulted in a number of medical ailments, including the complete loss of her fertility.

Liability was admitted and the case was therefore restricted to the issue of quantum only. XX was aged 29 and her complete loss of fertility was a terrible blow to her as one of her central ambitions in life was to have her own family. She was so devastated by the news that she would be unable to bear children that she postponed her cancer treatment on two occasions in order to take a second and third opinion on whether fertility sparing surgery was indeed no longer available to her. Unfortunately it was not.

In the end the only option available to her was to undergo a cycle of ovarian stimulation and egg harvest which produced twelve eggs which were cryopreserved by vitrification.

In addition to claiming compensation for her extensive ongoing physical and psychological injury as well as numerous other future costs including loss of earnings, the Claimant sought through her Action the cost of four commercial surrogacy arrangements in California. She indicated that she and her partner had decided to have their own biological children by surrogacy. She had always wanted a large family and would wish to have 4 children. Their first choice for surrogacy was in California and there were clear benefits to undertaking a surrogacy arrangement in California over surrogacy in the UK. First and foremost commercial surrogacy is legal in California but not in the UK. Alternatively, if surrogacy under the Californian system was not granted, XX sought the cost of surrogacy in the UK claiming the cost of four pregnancies using her own eggs or those of a donor if required.

Parties obtained expert evidence on the likely success rates of any surrogacy and it was agreed that on balance of probabilities the Claimant would achieve two live births.

In reaching his Decision Judge Sir Robert Nelson discussed in detail the 2001 Court of Appeal ruling in the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. In that case the Claimant had sought to recover the costs of surrogacy in California using her own eggs. However the Court of Appeal had ruled that surrogacy claims in English Law were against public policy and therefore could not be allowed. The Court of Appeal left open the question of whether the cost of a surrogacy arrangement using the mother’s own eggs was a recoverable head of claim albeit at that time the then Lady Justice Hail indicated she thought such a proposal was a “step too far”.

It was submitted by the legal team for XX that attitudes towards surrogacy had changed over the last fifteen years. Importantly the Human Fertilisation & Embryology Act 2008 had amended the Surrogacy Arrangements Act of 1985 by permitting payment for arranging surrogacy through non-profit agencies such as COTS. Family Courts now grant parental orders to intended parents who have entered into commercial surrogacy arrangements abroad and have retrospectively authorised commercial payments to surrogates and surrogate agencies. Whilst commercial arrangements such as those which take place in California are not yet legal in the UK, it was argued that surrogacy was no longer an affront to public policy as it had been at the time of Briody.

Giving due consideration to this case Judge Sir Robert Nelson said he was bound by the Decision in Briody on the issue of whether or not the costs of a Californian surrogacy could be recovered. In that regard he stated the Claimant’s claim must fail as commercial surrogacy arrangements are still illegal in the UK and thus contrary to public policy.

However, he did award £74,000 for the costs of two future surrogacies in the UK following the Rules provided under English Law. In particular he referred to the comments made by Lady Justice Hale in the Briody case indicating that he found it difficult to see why in general principle such a case should not be capable of attracting an award.

He did however limit this award to a claim based on the use of XX’s own eggs. In particular he stated that the loss sustained by the Claimant was due to an inability to have her child, not a child and as such the use of donor eggs was not therefore restorative of her loss.

This is the first time in UK Law that such a head of claim has been allowed and it will be interesting to see whether this issue arises and is tested in Scottish Courts. In the meantime it may act as an incentive for the costs of future fertility treatment to be considered as part of a medical negligence claim.

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