Court: Supreme Court
Judgment Date: 1 April 2020
Where Reported: [2020] UKSC 14; [2021] A.C. 275; [2020] 2 W.L.R. 972
Legal Issue in Whittington Hospital NHS Trust v XX
The legal issue in Whittington Hospital NHS Trust v XX centred on the recoverability of damages for surrogacy costs following medical negligence.
The case particularly examined whether damages could include the cost of commercial surrogacy arrangements abroad (specifically in California) and non-commercial surrogacy in the UK using either the claimant’s own eggs or donor eggs.
The case tested the boundaries of public policy in the context of surrogacy and the principles governing the award of damages in tort law, particularly concerning the extent to which damages could restore the claimant to her position before the tortious act​​​​.
Material Facts in Whittington Hospital NHS Trust v XX
The claimant in Whittington Hospital NHS Trust v XX became infertile due to the defendant NHS trust’s negligent failure to diagnose her cervical cancer in a timely manner.
She sought damages for the cost of undergoing four pregnancies via surrogacy arrangements.
Her plan included commercial surrogacy in California and non-commercial surrogacy in the UK, using either her cryopreserved eggs or donor eggs.
The initial judgment awarded damages for the cost of surrogacy arrangements in the UK using the claimant’s own eggs for two children.
However, it dismissed the claims concerning the use of donor eggs and the costs of surrogacy arrangements in California.
The latter dismissal was based on the court’s view that commercial surrogacy, while legal in California, was illegal in the UK and thus contrary to public policy​​​​.
Judgment in Whittington Hospital NHS Trust v XX
The Supreme Court dismissed the defendant’s appeal, modifying the lower court’s judgment.
It held that damages could be awarded for the cost of surrogacy arrangements in the UK using the claimant’s own eggs, as well as using donor eggs.
The court recognised that societal attitudes towards what constitutes a family had evolved to extend beyond pure genetic links.
The court also held that it was no longer contrary to public policy to award damages for the cost of commercial surrogacy arrangements in California.
This decision in Whittington Hospital NHS Trust v XX was influenced by the fact that the actions proposed by the claimant (engaging in commercial surrogacy in California) did not involve a criminal offence under UK law, even though commercial surrogacy agencies are not permitted to operate within the UK.
The judgment established that such damages were recoverable, provided the proposed surrogacy treatments were reasonable and had a reasonable prospect of success​​.
The Reason for the Decision Whittington Hospital NHS Trust v XX
The Supreme Court’s decision in Whittington Hospital NHS Trust v XX was influenced by several factors.
First, the court considered the fundamental principles of tort law damages which aim to restore the injured party to the position they would have been in had the tort not occurred.
In this case, the loss suffered by the claimant was her ability to bear her own children. The court found that awarding damages for surrogacy costs was a means of restitution for this loss​​.
The court also recognised the changes in societal attitudes and legal positions regarding surrogacy and family structures.
Over the years, societal views on what constitutes a family have broadened, and the law has evolved to reflect these changes.
The court noted that the use of donor eggs in a UK surrogacy arrangement could be seen as a viable means of restoring the claimant’s opportunity to raise a child, even if the child was not genetically hers​​.
Regarding the claim for expenses of Californian surrogacy, the court acknowledged the global differences in surrogacy laws and practices.
However, it emphasised that nothing in the claimant’s proposed actions constituted a criminal offence under UK law.
The court also recognised that many of the costs incurred in commissioning a surrogacy in California would be claimable if the surrogacy took place in the UK.
This aspect was significant in determining that awarding damages for the cost of a foreign commercial surrogacy was not contrary to public policy, provided the treatment was reasonable and the costs involved were reasonable​​.
The decision in Whittington Hospital NHS Trust v XX also took into account the principles articulated in earlier cases, such as Hale LJ’s judgments in intermediate cases of surrogacy, where she considered the reasonableness of the chances of success as a crucial factor in determining the recoverability of damages for surrogacy arrangements​​.
Conclusion
Whittington Hospital NHS Trust v XX marked a significant development in the law of damages and the legal understanding of surrogacy in the context of medical negligence.
The Supreme Court’s decision reflected a progressive approach, aligning legal principles with contemporary societal values and recognising the evolving concept of family.
The judgment expanded the scope of recoverable damages in tort law to include the costs of both domestic and foreign surrogacy arrangements, considering the reasonable prospects of success and the reasonableness of the treatment.
