Case of note: XX v. Whittington Hospital NHS Trust (Supreme Court, 1 April 2020)

Date published:

XX was a woman in her late 20s at the time of the negligence which led to her claim.  The trust failed to identify invasive carcinoma in the years leading to 2012. Had they detected preliminary signs in 2008, there would have been a 95% chance of complete cure and XX would not have developed cancer at all. Liability was admitted at an early stage, and this litigation concerned one specific element of damages, namely a claim for recovery of commercial surrogacy costs based on arrangements in California. All other aspects of the claim were settled.

Before undergoing chemotherapy and radiotherapy, the claimant had eight of her eggs collected and frozen. Subsequent treatment rendered her infertile and unable to bear her own children. Both XX and her partner came from large families and maintained that they wanted to have four children, two using XX’s eggs and two with donor eggs. They wished to enter into surrogacy arrangements in California because commercial surrogacy is illegal in England, although non-commercial arrangements are permitted here. The main reason for their choice was that in California the surrogate is not the legal mother of the child, whereas in England she is and that can lead to legal complications if she wishes to retain the baby.

We argued that it was contrary to public policy to allow recovery of commercial surrogacy fees because such arrangements are not permitted here, even though it is not illegal for someone in England to enter into an arrangement in another country where it is lawful. The previous leading decision on recovery of such charges was Briody v. St. Helen’s and Knowsley Area Health Authority (2001), where Lady Hale gave the main judgment whilst a judge in the Court of Appeal. She declined to award commercial surrogacy costs in California, stating that “it would be quite unreasonable to expect a defendant to fund” such charges. It should be noted, however, that the chances of a successful surrogacy outcome for Ms. Briody were very low, whereas for XX they were much higher.

In the present case, the first instance judge (Sir Robert Nelson) held in 2017 that he was bound by the ruling in Briody and awarded only non-commercial surrogacy costs in England. That decision was overturned by the Court of Appeal in 2018, chiefly on the basis that public attitudes to surrogacy had moved on considerably since 2001.

Lady Hale, in her last case in the Supreme Court before retirement, gave the lead majority judgment. She agreed fully with the Court of Appeal about changed public attitudes and pointed out that surrogacy arrangements are now much more frequently entered into than was the case in 2001.  Family law in 2020 recognised a much wider set of relationships as constituting “family life”. Government policy had moved strongly towards supporting surrogacy arrangements. Given these considerations, amongst others, she held that it was no longer contrary to public policy for the costs of Californian commercial surrogacy to be recovered as damages. She stressed that XX was not committing any offence in England by embarking on such contractual arrangements in California. Consequently, she ruled that recovery was permissible.

The majority of justices did, however, stress as general principles in this type of claim that:

  1. the proposed programme of treatments must be reasonable;
  2. it must be reasonable for the claimant to seek foreign arrangements, and that such arrangements are unlikely to satisfy this requirement unless the legal rules in the relevant country safeguard the interests of each of the surrogate, child and commissioning parents; and
  3. the costs must be reasonable.

The two dissenting justices stressed that the law needed to be consistent and coherent, but that principle was not maintained if courts awarded damages for something which is illegal in this country.

This was an exceptionally sad case where a young woman lost the ability to bear her own children, and developed cancer, as a result of the trust’s negligence. She also suffered serious psychological harm. However, we considered that it was necessary for the Supreme Court to produce a ruling on this issue, given that there had been two conflicting decisions from the Court of Appeal. Although the decision went against the trust the law has now been clarified, and the rationale behind this judgment can be applied to other cases.