Whittington Hospital NHS Trust v XX [2020] UKSC 14 (01 April 2020)

Majority decision

Lady Hale (Lord Kerr and Wilson agree)

The object of damages in tort is to put C, as far as possible, back in the position in which she would have been had the tort not been committed. Money has to compensate, as far as it can, for those injuries that cannot be cured… What then should be the measure of damages for a woman who has been wrongfully deprived of the ability to bear children herself? Along with general damages for pain, suffering and loss of amenity, should it include the cost of making surrogacy arrangements with another woman to bear a child for her to bring up? In particular, should it include the cost of making commercial surrogacy arrangements abroad? [1]

C was born in 1983 and so was aged 29 when the negligence in question was discovered. She had a cervical smear test in 2008 which was wrongly reported as negative when in fact it showed severe dyskariosis. She had another smear test in February 2012 which again was wrongly reported… The hospital admitted negligence in respect of the 2008 and February 2012 smear tests and both the biopsies. Had appropriate action been taken in 2008, there was a 95% chance of a complete cure, and she would not have developed cancer at all. [2]

In June 2013, therefore, C underwent a round of ovarian stimulation and egg collection as a result of which she has eight mature eggs frozen in storage. After that, she had surgery and chemo-radiotherapy… The damage to her womb was such that she could not bear children herself. The focus of this appeal is upon the damages payable for the loss of the ability to bear her own child. [4]

The hospital now appeals to this court. There are three issues:

(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 either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable? [8]

…The courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy. The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here. The use of assisted reproduction techniques is now widespread and socially acceptable… [52]

…it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy…[53]

…dismiss this appeal… [54]

Lord Carnwath dissenting (Lord Reed agrees)

…It would in my view be contrary to that principle for the civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law. [66]

…There has however been no change to the critical laws affecting commercial surrogacy, which led to the refusal in 2001 of damages on that basis… So long as that remains the state of the law on commercial surrogacy in this court, it would not in my view be consistent with legal coherence for the courts to allow damages to be awarded on a different basis. In short, I consider that the decision of the Court of Appeal was correct in 2001, and remains correct today. [67]

…allow the appeal on the third issue [68]