01 April 2020
Sarah Williams comments on XX v Whittington NHS trust – Supreme Court ruling (majority decision 3-2)
The Supreme Court has today ruled that a young woman who suffered cervical cancer and infertility as a result of an NHS Trust’s negligence will be awarded damages to enable her to have children via commercial surrogacy arrangements in California.
This landmark ruling means that the costs of prospective foreign commercial surrogacy arrangements can now form an official head of damages in clinical negligence claims. The ruling also determines the basis upon which damages may be awarded under this head.
The defendant NHS trust incorrectly and negligently interpreted the claimant’s cervical smear test results and biopsies between 2008 and 2013 and, as a consequence, the claimant’s advancing cervical cancer remained undetected. By the time her cervical cancer was discovered in June 2013, she was rendered unable to bear a child. The claimant delayed her cancer treatment in order to undergo a round of ovarian stimulation and egg collection, which resulted in the harvesting of eight of her eggs, which were frozen and kept in storage.
After hearing expert fertility evidence, the court found that the claimant will probably be able to have two children from her own harvested eggs and her partner’s sperm with the help of a surrogate (although the claimant was also keen to have two further children using donor eggs and her partner’s sperm). The claimant’s preferred option was to enter into a commercial surrogacy arrangement in California where there is an established surrogacy network and where surrogacy contracts are legally binding. This is in contrast to altruistic or compensatory surrogacy arrangements in England, where the contracts are not legally recognised and thus not enforceable.
At first instance, before Sir Robert Nelson in the High Court, liability was admitted but the Judge dismissed the claimant’s claim for damages in relation to Californian surrogacy on the grounds that a foreign commercial arrangement such as this was contrary to UK public policy. He therefore limited her claim to two surrogacies using her own eggs (and not the two further ones using the donor eggs) and awarded the claimant £37,000 per pregnancy – a total of £74,000 to be used only in an English surrogacy arrangement.
The claimant appealed and in a landmark ruling in December 2018, the Court of Appeal ruled that she could be awarded damages for Californian surrogacy arrangements and awarded her £560,000 in damages. The defendant NHS trust appealed to the Supreme Court, leaving the Judges to consider once more the legality of an award in relation to commercial surrogacy (in countries where this is lawful) in clinical negligence cases.
The Supreme Court decided by a 3 – 2 majority that the claimant could recover the anticipated costs of having two children using her own eggs via commercial surrogacy in California. Delivering the majority judgment, Lady Hale highlighted the dramatic recent developments in both the law and societal attitudes towards surrogacy. She concluded that although English commercial surrogacy arrangements remain illegal, the English courts do recognise and retrospectively authorise reasonable payments made by English intended parents in an overseas commercial surrogacy arrangement, and she clarified that this retrospective authorisation is no longer contrary to English public policy. However, Lady Hale warned that to award damages for overseas commercial surrogacy in clinical negligence cases such as this one, it must be reasonable for the claimant to seek the foreign surrogacy arrangements rather than make arrangements within the UK. Furthermore, in determining what constitutes reasonable, the court indicated that the foreign surrogacy destination must have a well-established surrogacy system in which the interests of the surrogate, the commissioning parents and the resulting child, are all properly safeguarded.
This is a long-awaited judgment that will give some guidance and clarity to future claimants seeking oversees surrogacy expenses where their infertility has been caused by a defendant’s clinical negligence but, both the Supreme Court and the Court of Appeal, emphasised that each case will be considered on its individual facts and merit.
For the Supreme Court case and Judgment click here
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