The Court of Appeal’s decision in the recent case of XX v Whittington Hospital NHS Trust has very interesting implications.
In this particular case the applicant when 29 years old was diagnosed with stage 11B cervical cancer. She underwent smear tests in 2008 and 2012 and had biopsies taken in 2012 and 2013. The trust admitted a breach of duty for failing to diagnose her cancer as a result of these investigations. The tumour required chemo –radiotherapy causing XX to become infertile.
The only way XX could have a child was through surrogacy. In the UK surrogacy is not a crime provided that the surrogate mother is not paid. There are, however, a limited number of Eastern European countries along with America who do allow commercial surrogacy.
In this case the Clamant proceeded with the surrogacy in America as it is lawful in the United States and commercial agreements are binding. XX then included the cost of the surrogacy in her claim against the NHS Trust.
Initially the case was heard in June 2017 by Sir Robert Nelson. He decided that as commercial surrogacy arrangements were illegal in the UK it was contrary to public policy to allow XX to be compensated for the costs of commercial surrogacy. The case was appealed and on the 19 December 2018 the Court of Appeal unanimously awarded damages for the use of a Californian surrogate. Lady Justice McCombe said:
“There is plenty of judicial authority, arising from the diversity of the family in modern society which requires the court to ask itself, when such questions arise in contexts such as the present, whether the law is achieving a necessary coherence and consistency in sticking rigidly to a perception of public policy formulated even a few years ago.” It was determined that as XX’s intentions were not unlawful in either America or the UK , there was no reason to prevent her recovering the costs associated with the use of a commercial surrogate based in California.
The impact of this decision is that the Courts are now willing in certain circumstances to allow claims for the costs associated with commercial surrogacy arrangements provided the prospects of a successful live birth are good.