The UK Court of Appeal has found that the cost of commercial surrogacy in California can be recoverable in damages in the UK.
The claimant, Ms X, was diagnosed with cervical cancer at age 29. This diagnosis was delayed due to the accepted negligence of the defendant hospital, Whittington Hospital NHS Trust. Ms X therefore had to undergo chemo-radiotherapy which led to infertility. Before treatment began, Ms X had a number of eggs frozen which made it possible for her to have her own biological children through surrogacy. Ms X intended to carry out the surrogacy in California, where commercial surrogacy agreements are legally binding and intending parents can obtain a pre-birth order from the court confirming their legal status as parents of the child.
Ms X therefore made a claim against the hospital for the cost of the four pregnancies she hoped to have, using her own eggs but if necessary using donor eggs and her partner’s sperm. This failed in the High Court as commercial surrogacy arrangements are illegal in the UK and therefore contrary to public policy. As reasonable expenses may be paid to a surrogate in the UK, however, these were awarded.
The Court of Appeal went on to allow the appeal, as entering a legal contract in the US was not unlawful. The Court found that the purpose of prohibiting commercial surrogacy was to prevent it being carried out in the UK, but that did not make it contrary to the public policy of domestic law. The Court therefore held that to deny Ms X would be to prevent full recovery of damages such as to restore her personal autonomy in being able to found a family.
Click here to view the decision in XX v Whittington Hospital NHS Trust.