The ruling is a clear example of how changes in public policy and attitudes inform how the courts approach certain types of case.
The claimant was 29 years old when she discovered that she was the victim of medical negligence which rendered her infertile. She had undergone a number of smear tests between 2008 and 2012 as well as biopsies at hospitals within the defendant NHS trust. Each test was negligently reported to her when the hospital had failed to detect her cervical cancer.
In fact, she had abnormal cells (even the first smear test revealed severe dyskaryosis but was wrongly reported as negative). The subsequent tests and biopsies were also wrongly reported when they actually showed the abnormal cells had developed into cervical cancer.
The errors were not detected until 2013. Had appropriate action been taken in 2008, there was a 95 per cent chance of a complete cure and she would not have developed cancer. On discovery of the cancer, she underwent chemo-radiotherapy; but first, she had eight eggs collected and frozen because she and her partner wanted to start a family.
The claimant brought proceedings against the trust. The hospital admitted negligence, but the issue of damages had to be resolved.
An important element of her damages claim related to the costs in relation to surrogacy arrangements in California on a commercial basis. In the High Court, her claim for these costs failed on the basis that it was contrary to public policy. It ruled that surrogacy using donor eggs was not restorative of the claimant’s fertility but it did allow damages for own-egg surrogacies in the UK (£37,000 each for two pregnancies).
She successfully appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The Court of Appeal ruled that public policy was not “fixed in time” and was now to be judged by the framework laid down by the Supreme Court in Patel v Mirza (2016). Furthermore, attitudes to commercial surrogacy have changed over the years; perceptions of the family had also changed over recent years and using donor eggs could now be regarded as restorative.
In the Supreme Court
The hospital appealed to the Supreme Court and lost. Lady Hale (in one of her final speeches as President of the Supreme Court before her retirement) narrowed down the issues stating that the focus of the appeal was upon the damages payable for the loss of the ability to bear her own child.
“The object of damages in tort is to put the claimant, 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. For some women”, she said, “the ability to bear and to rear children is a vital part of their identity. 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?”
The trust’s appeal raised three issues:
- Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
- If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
- In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?
Crucially for the court, public opinion has changed and developed since an important ruling (Briody) on similar issues in 2001. Lady Hale concurred with the appeal court on that view.
She referenced the 2019 joint consultation paper from the Law Commission and the Scottish Law Commission, Building families through surrogacy: a new law and quoted it thus: “… the research that exists suggests that public attitudes to surrogacy now stand in stark contrast to the prevailing hostile attitudes at the time of the Surrogacy Arrangements Act 1985. The available research reflects the fact that the legislation is now out of step with attitudes towards surrogacy”.
As for the correct level of damages, Lady Hale emphasised that some potential heads of damages are irrecoverable as they would be contrary to legal or public policy. For example, the House of Lords held in 2000 that it was contrary to public policy to award damages to cover the costs of bringing up a healthy child a couple was “never meant to have” (the father had had a vasectomy) (McFarlane v Tayside Health Board  2 AC 59).
The Supreme Court ruled that damages to fund surrogacy arrangements using the claimant’s own eggs were recoverable; and that subject to reasonable prospects of success, damages could be claimed for the reasonable costs of UK surrogacy using donor eggs.
The most difficult issue for the court was damages to fund the cost of the foreign commercial surrogacy arrangements. Lady Hale took the view that it was no longer contrary to public policy to award damages for such costs. However, she said the proposed programme of treatments must be reasonable; it must also be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; finally, the costs involved must be reasonable.
The trust’s appeal failed.
What does this mean?
Laurence Toczek, a solicitor and tutor at BPP University Law School provides some useful advice for practitioners. He says those with clients in the claimant’s situation or an analogous one should advise them about the drawbacks of the surrogacy framework in the UK; and the possibility of claiming the costs of surrogacy in another jurisdiction where such drawbacks are not present.
He adds: “If the client expresses an interest in pursuing such a claim, it is crucial that appropriate evidence is collected, for example, medical evidence will be required confirming that there are reasonable prospects of the treatment being successful. There needs to be evidence that, but for the negligence, the claimant would have had the number of children now proposed.
“The court will need to be convinced that the foreign arrangements are reasonable; Lady Hale expressed concern about unregulated systems where both surrogate and commissioning parents are at the mercy of unscrupulous agents and providers and children may be bought and sold.”
Finally, he says the court will want details of the costs of the proposed arrangement in order to decide whether they are reasonable.