What can we learn from the Supreme Court decision in Whittington Hospital NHS Trust V XX? – Litigation, Mediation & Arbitration

Background

XX was diagnosed with cervical cancer in 2013. At this point, it was found that several smear tests and cervical biopsies that she had performed previously had been misinterpreted.

The first error occurred in 2008, when stage XX did not have cervical cancer but had severe dyscariosis (precancerous cell changes). If it had been diagnosed and treated correctly at that time, there would have been a 95% chance that she had not developed cancer at all.

In June 2013, when the diagnosis of cervical cancer was made, XX’s condition was too advanced for her to undergo surgery to preserve her ability to bear a child on her own. However, she was able to have some of her eggs collected and frozen for future use.

XX and her partner wanted to have four children. The expert evidence obtained in the case was that she could possibly have two children using her eggs and her partner’s sperm. XX then wanted to have two more children using donor eggs and her partner’s sperm.

As XX was unable to bear a child on her own, she sought compensation to pursue a surrogacy agreement and, in particular, an agreement in California, United States. Unlike the UK, California supports “commercial” surrogacy and is a popular choice for UK-based parents due to its favorable surrogacy laws.

What the court decided

Whittington Hospital NHS Trust admitted negligence but disputed the amount of compensation that was to be paid to XX. Following a hearing in the High Court, a judge did not allow any compensation for the costs of commercial surrogacy abroad or any form of surrogacy using donor eggs. The court, however, allowed compensation for the estimated costs of non-commercial surrogacy in the UK using XX’s own eggs (amounting to £ 74,000.00 to cover two pregnancies).

XX and the NHS Trust have appealed the decision to award compensation for egg surrogates. After the Court of Appeal ruled in favor of the plaintiff, the NHS trust then appealed to the Supreme Court.

In an earlier case (Briody v St Helen’s and Knowsley Area Health Authority), the Court of Appeals had ruled that the California surrogacy trade agreements were “contrary to the public order of this country … and that it would be quite unreasonable to expect a defendant to finance it. “He also decided that surrogacy using donor eggs was”in no way restorative of Mrs. Briody’s position… She seeks to make up for part of what she has lost by offering her something different. Neither the child nor the pregnancy would be hers. “

This decision was not binding in XX’s case and the Supreme Court ruled that it did not reflect changes in law and social attitudes since the previous claim was heard. The majority of the Supreme Court decided that:

• It was reasonable to seek to “remedy” the loss of a uterus through surrogacy, if the prospects of successful pregnancies were reasonable.
• Nothing XX offered to do involved her committing a criminal offense in the UK or overseas. The relationships created by surrogacy, including foreign commercial surrogacy, have been recognized by the courts and the use of assisted reproduction techniques is now socially acceptable. In this context, it was no longer against public policy to award compensation for the costs of a foreign commercial surrogacy.
• However, such compensation would only be granted where the treatments offered were reasonable, when it was reasonable for the claimant to seek business arrangements abroad rather than making arrangements in the UK and when the costs themselves were reasonable.

The Clinical Negligence Lawyer Perspective

Under English law, the starting point is that if a person has been injured as a result of negligence, they are entitled to compensation to put them back to the position they should have been in if the negligence had not. not happened, as far as money can do it. However, a defendant is not obligated to compensate any expenses that the injured party might incur as a result of the negligence. There is also the test of whether it is “reasonable” for them to have to pay these fees.

Here, the first of these issues raised the question of whether a person whose ability to bear a child could be “restored” to that ability through surrogacy, with or without the use of donor eggs. As Lady Hale has pointed out, this begs the question: what constitutes a family?

Some would object to this being an issue that the courts have the power to decide. However, courts are often called upon to decide who has the legal rights and responsibilities of parenthood in a given situation.

From the perspective of a clinical negligence lawyer, the issue here is slightly different. In the present case, the Court was not called upon to decide whether XX would be the legal mother of any child resulting from the use of donor eggs and / or from surrogacy. Rather, he had to decide what compensation a defendant should have to pay to try to put XX back in the position she should have been in, had she not been deprived of the capacity to personally bear a child.

Having concluded that compensation for the costs associated with the use of donor eggs and / or surrogacy could be considered to restore XX’s ability to have a child, the Supreme Court still had to consider whether he was reasonable for the defendant to have to pay these costs. . He decided he was, provided certain conditions were met.

The Supreme Court ruling certainly opens the door to claims for various types of assisted reproduction and surrogacy when a person’s fertility and / or ability to bear a child has been affected by neglect. However, he also clarified that the door can be closed in special cases, when the proposed arrangements or the costs thereof were considered unreasonable. It therefore seems little doubt that this will continue to be a contentious issue in clinical negligence cases in the future.

Comments from the surrogate motherhood lawyer

Surrogacy is legal in the UK but there are various rules and restrictions on how it works and any agreement / contract is unenforceable so agreements are based on trust and good, solid relationships. UK surrogates should also not be paid more than their “reasonable expenses”, although there is no definition in the law of what reasonable expenses are or how much. To this murky landscape is added the position of legal parenthood after surrogacy because it is the surrogate mother, as the person who gives birth, who is treated as the legal parent of the child and if she is married or in a civil partnership. , her spouse will automatically be considered as the second legal parent.

As a result, there is a real shortage of surrogate mothers in the UK and the lack of legal certainty is driving UK parents abroad to embark on international commercial surrogacy, where there are more favorable motherhood laws. substitution and where everyone is better protected from start to finish.

The United States, and particularly California, is a well-established commercial destination for surrogacy and a popular choice for UK-based parents. Surrogacy agencies operate for profit, which allows them to screen and screen surrogate mothers and expectant parents thoroughly. Surrogacy contracts detailing the benefits paid to the surrogate mother are legally enforceable and the parents, rather than the surrogate mother and her spouse, are the legal parents from birth. As a result, there are more substitutes.

In the past, the UK has taken a strong stance against commercial surrogacy agreements, but with an increase in the number of UK parents moving abroad, family court is regularly asked to allow payments retrospectively. as part of the post-birth parental order process (which transfers parenthood to parents after surrogacy) once back in the UK. The Supreme Court recognized this in its ruling and noted that the family court has never refused to make a parenting order based on business payments made.

The Supreme Court’s decision to award compensation to XX for pursuing an arrangement in California did not change the UK surrogacy law, but it did emphasize that international commercial surrogacy is no longer contrary to public order and that it is absolutely legal for British parents to raise their families in this country. manner. With the increase in surrogacy, the ruling in this case sends a very clear and positive message to UK parents who are considering growing their families through international surrogacy and in particular, to those considering doing so. in well-regulated destinations where there are laws. that protect everyone involved.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.