Surrogacy Costs 3.0: Return Of The Justices

• Published date: 03 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Anthony Gold
• Author: Ms Amy Wedgwood

The Godfather, Lord of the Rings, and Back to the Future: what do all of these film series have in common? They are trilogies.

For those of you who are avid readers of my blogs, you will know that I've been following the case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 quite closely. Back in 2017, the first instalment of the surrogacy trilogy began.

The facts

XX developed cancer of the cervix which was not detected, either by way of smear tests or biopsies. To treat her cervical cancer, she required chemo-radiotherapy treatment. The side effect of such treatment was infertility and severe radiation damage to her bladder, bowel and vagina. Had XX's cancer been detected sooner, she would have had the opportunity to undergo fertility-saving surgery, but as a result of the defendant's admitted negligence, such surgery was not possible.

As XX was unable to carry her own children, XX and her partner wished to have their own biological children by surrogacy. They elected to pursue a commercial surrogacy arrangement in California, as opposed to a UK based non-commercial surrogacy. Prior to XX undergoing her treatment for cervical cancer, she first underwent a cycle of ovarian stimulation and egg harvest which produced 12 eggs. Those eggs were cryopreserved by vitrification. As XX and her partner wished for a large family, they were willing to use donor eggs should XX's own cryopreserved eggs not result in a sufficiently large number of children. By the time the case came to trial, liability had been admitted by the defendant trust, so the only issues the Court was asked to determine related to quantum.

Previous decisions

In a Court room far far away¹, Sir Robert Nelson, sitting as a High Court Judge, concluded that whilst surrogacy costs were, in principle, recoverable, the costs associated with commercial surrogacies and surrogacies involving donor eggs were not. Thereafter, we all waited with bated breath to see if there would be a second instalment, and just like with Godfather II, we were not disappointed. In 2018 the Court of Appeal revisited the issues of commercial surrogacy arrangements, the use of donor eggs, and XX's award for PSLA (pain, suffering and loss of amenity), and overturned the decision of the High Court. The Lord and Lady Justices unanimously concluded that the costs associated with XX's Californian commercial surrogacy arrangement were recoverable, that it was entirely artificial to distinguish between "own" and "donor" eggs and, as XX had been successful in her appeal, her PSLA damages should be reduced to reflect this. Then in 2020, there came the third and final instalment.

The Supreme Court's decision

The Supreme Court were asked to consider three issues²:

1. Are damages to fund surrogacy arrangements using the claimant's own eggs recoverable?
2. If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
3. In...