Whittington Hospital NHS Trust v XX [2020] UKSC 14

On the same day as the decisions in Barclays and Morrisons, the Supreme Court also held that a defendant hospital trust liable in damages for clinical negligence must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence, the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her. Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant wished to enter into a commercial surrogacy arrangement in the USA (as it is not permitted here) and she sought the cost of doing so in damages.

At first instance it was held that the Court of Appeal’s decision in Briody v St Helen’s and Knowsley AHA (Damages and Cost) [2001] EWCA 1010 was binding to the effect that this could not be claimed as it was contrary to public policy.

However, the Court of Appeal overturned this decision and found for the claimant. By a 3-2 majority, the Supreme Court upheld this decision.

Lady Hale, for the majority, revisited her own decision in Briody almost 20 years before. She emphasised the restitutionary purpose of damages in tort and held that there had been significant developments since the previous decision, including the increased role of third parties in surrogacy arrangements, developing social attitudes to surrogacy, changing views as to the definition of what constitutes a family and advances in techniques of assisted reproduction. She held that the Briody decision was “probably wrong then and is certainly wrong now”. The claimant was entitled to recovery the costs of commercial surrogacy in full.

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