Whittington Hospital NHS Trust v XX [2020] UKSC 14

A woman rendered infertile due to negligent cervical cancer screening sought damages for surrogacy costs. The Supreme Court held damages could include costs of commercial surrogacy abroad using donor eggs, departing from earlier restrictive precedent, reflecting changed social attitudes to family formation.

Facts

The claimant, born in 1983, underwent cervical smear tests in 2008 and 2012 which were negligently misreported, failing to detect cervical cancer. Had appropriate action been taken in 2008, there was a 95% chance of complete cure. By 2013, when the errors were discovered, her condition was too advanced for fertility-preserving surgery. She underwent chemo-radiotherapy which rendered her unable to bear children. She had eight frozen eggs and wished to have four children through surrogacy, preferring commercial surrogacy arrangements in California.

Issues

Issue 1

Whether damages to fund surrogacy arrangements using the claimant’s own eggs are recoverable.

Issue 2

Whether damages to fund surrogacy arrangements using donor eggs are recoverable.

Issue 3

Whether damages to fund commercial surrogacy arrangements in a jurisdiction where this is lawful (California) are recoverable.

Judgment

Majority (Lady Hale, Lord Kerr, Lord Wilson)

Lady Hale reviewed the substantial developments in law and social attitudes since the Court of Appeal decision in Briody v St Helen’s (2001). She noted dramatic changes including: the expansion of parental order eligibility to same-sex couples, civil partners, cohabiting couples and single applicants; government support for surrogacy as a valid family creation method; and increased public acceptance of assisted reproduction.

“It is no longer thought that women should not have the right to choose to use their bodies in this way. But it is thought that both they and the commissioning parents should be protected from exploitation and abuse.”

On own-egg surrogacy, Lady Hale held this was recoverable subject to reasonable prospects of success. On donor-egg surrogacy, she departed from her previous view in Briody:

“In my view it was probably wrong then and is certainly wrong now… for many women, the pleasure of bringing up children as one’s own is far and away the most important benefit of having children. If this is the best that can be achieved to make good what she has lost, why should she be denied it?”

On commercial surrogacy abroad, Lady Hale concluded:

“I conclude that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.”

However, she emphasised important limiting factors: the treatment programme must be reasonable; it must be reasonable to seek foreign rather than UK arrangements; the foreign country must have a well-established system safeguarding all parties’ interests; and costs must be reasonable.

Dissent (Lord Carnwath, Lord Reed)

Lord Carnwath agreed on the first two issues but dissented on commercial surrogacy. He emphasised the principle of legal coherence:

“It would in my view be contrary to that principle for the civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law.”

He noted that while social attitudes had changed, there had been no change to the critical laws affecting commercial surrogacy since Briody.

Implications

This decision significantly expands the scope of recoverable damages in fertility-related clinical negligence claims. It recognises modern family structures and the legitimacy of various pathways to parenthood. The judgment provides a framework for assessing such claims while maintaining safeguards against exploitation. It demonstrates the court’s willingness to develop the common law to reflect evolving social attitudes and legal developments, though the dissent highlights tensions between judicial development and parliamentary policy choices.

Verdict: Appeal dismissed by majority (3-2). The claimant was entitled to recover damages for the costs of commercial surrogacy arrangements in California, including those using donor eggs, subject to requirements of reasonableness regarding the treatment programme, the choice of foreign arrangements, and the costs involved.

Source: Whittington Hospital NHS Trust v XX [2020] UKSC 14