Considering surrogacy in clinical negligence cases
The issue of surrogacy when determining compensation in clinical negligence cases is an issue which arose in the case of XX v Whittington Hospital NHS Trust, resulting in a landmark ruling for the Claimant
Posted on 18 January 2019
Facts of the case
XX attended the Defendant Trust for smear tests in 2008 and 2012 and biopsies in 2012 and 2013, during which signs of cancer were not detected when it was argued that they should have been. XX then went on to develop invasive cervical cancer for which she required chemoradiotherapy. The treatment rendered her infertile with severe damage to her bladder, bowel and vagina as a result of the radiotherapy.
XX had not yet had the opportunity to have children and therefore prior to treatment had 12 of her own eggs extracted and frozen so that she and her partner could still have their own biological children. XX planned to do this either by way of non-commercial surrogacy in the UK or commercial surrogacy in California. Commercial surrogacy is unlawful in the UK hence XX investigating alternative options1.
As part of the litigation, XX claimed the costs of 4 pregnancies either by way of a commercial surrogacy in California or a non-commercial surrogacy in the UK, using her own eggs or, if necessary, those from a donor.
Liability was admitted for the failure to identify the cancerous cells; however quantum was disputed and therefore the case proceeded to a quantum only trial in June 2017, heard by Mr Justice Nelson.
Decision of the trial judge
Mr Justice Nelson awarded XX £580,619 in damages which included £160,000 for pain, suffering and loss of amenity and £74,000 for the surrogacy claim (being the cost of 2 surrogacies in the UK using XX’s own eggs - notably much cheaper than a commercial arrangement in California would cost).
In deciding whether to award XX surrogacy costs, Mr Justice Nelson considered the view of Lady Justice Hale (as she then was) in 2002 case of Briody v St Helen’s and Knowsley Area Health Authority (the only other case where the issue of surrogacy has been considered). In Briody, Lady Justice Hale found that:
- The cost of commercial surrogacy could not be a head of loss as it is not lawful in the UK;
- The cost of non-commercial surrogacy using a donor’s eggs could not be a head of loss because the loss was not being able to have your “own child” not “a child” and therefore the use of donor eggs was not a restorative loss;
- The cost of non-commercial surrogacy using the Claimant’s eggs was not recoverable because she only had a 1% chance of having a live birth, which was not sufficient enough to justify such an award
Mr Justice Nelson followed the findings in Briody in so far as he agreed that the cost of commercial surrogacy was not recoverable; nor was the option of using donor eggs because he heard expert evidence that the prospects of a live birth in this respect were small. However he did make an award for the cost of 2 non-commercial surrogacies in the UK because expert evidence was given in trial that on the balance of probabilities, XX was likely to achieve 2 live births from her 12 frozen eggs. Mr Justice Nelson felt like this was a reasonable enough chance to justify making the award.
Grounds for appeal
Whilst Mr Justice Nelson’s decision was novel in that XX was the first person to be awarded surrogacy costs in clinical negligence litigation, she appealed his decision on the basis that he was wrong not to award the cost of commercial surrogacy and he was also wrong in not allowing the cost of surrogacy using donor eggs.
The Defendant Trust also appealed Mr Justice Nelson’s decision. They argued that he was wrong to award any surrogacy costs but that, if XX was to win her appeal then the amount awarded for pain, suffering and loss of amenity was too high as the £160,000 awarded took into account the loss of the claim for commercial surrogacy and any psychological damage arising from this.
Decision on appeal
The Court of Appeal allowed XX’s appeal, dismissing that of the Defendant Trust. Specifically the court found that there should be no differentiation between someone’s own egg and a donor egg because the law seeks to put a Claimant back in the position they would have been in (or as close to what they would have been in as possible) had they not suffered an injury and therefore if a live birth using someone’s own egg cannot be achieved then the next best thing is to use a donor egg. In terms of the cost of commercial surrogacy, the Court found that it would be wrong to deny XX the costs given that there was nothing unlawful about what she was intending. Whilst commercial surrogacy is not lawful in the UK, this does prevent someone from entering into a commercial arrangement in a place where it is lawful.
In view of their decision, the Court said that it is appropriate to revise the level of XX’s damages with such revision to be agreed between the parties; albeit the Court of Appeal did comment specifically on the amount awarded for pain, suffering and loss of amenity suggesting that an appropriate award in this respect would be £150,000 taking into account the fact that as stated above, part of the figure awarded by Mr Justice Nelson included the likelihood of XX suffering psychological damage as a result of the loss of the claim for commercial surrogacy.
This was a significant victory for the Claimant, setting precedent for future surrogacy claims (both in the UK and internationally) as a head of loss in clinical negligence cases.