This answer was kindly submitted by Sarah Hair.
How did the Court reach its decision in Whittington Hospital NHS Trust v XX  UKSC 14?
The majority judgment, delivered by Lady Hale, begins with a brief, introspective outline of the questions raised by the case. The Supreme Court was presented with the complex task of determining the extent damages should be awarded to a woman wrongfully robbed of the capacity to conceive and carry children.
Following a series of misdiagnoses, the respondent (originally claimant) consequentially developed advanced cervical cancer. The required treatment left her unable to bear children; the hospital admitted liability in negligence. Prior to treatment, the respondent sought to preserve fertility by freezing her eggs; expert evidence agreed two of these eggs should be viable. The respondent claimed damages for surrogacy using two of her own and two donor eggs, using commercial Californian surrogacy arrangements or, if this is were not funded, non-commercial UK arrangements.
Lady Hale summarised the three issues before the court as follows: firstly, whether damages for surrogacy using the respondent’s own eggs were recoverable; secondly, whether damages for surrogacy using donor eggs were recoverable; and thirdly, whether damages for commercial surrogacy abroad were recoverable.
The court first approached the law surrounding surrogacy. Lady Hale reiterated that commercial surrogacy arrangements are banned in the UK, observing ‘UK law on surrogacy is fragmented and in some ways obscure’.Under the Human Fertilisation and Embryology Acts 1990 and 2008, the woman who gives birth is the legal mother and bears parental responsibility; which, under the Children Act 1989, cannot be transferred. Thus, any contract regarding transfer of parental rights to commissioning parents is unenforceable, necessitating litigation. The only means of transferring legal parenthood is through a parental order, and the court must be satisfied the surrogate has ‘freely and with full understanding of what is involved agreed unconditionally to the making of the order’.Considering the complexity of UK surrogacy law, Lady Hale remarked that the respondent’s preference for commercial surrogacy in California is ‘scarcely surprising’.
The court then considered the relevance of Briody. Lady Hale, also delivering the judgment in this case, asserted ‘the persuasiveness of that ratio is inevitably affected by the developments in law and social attitudes which have taken place since then.’ She devoted great detail to such developments; most notable being amendment made by HFEA 2008 to allow reasonable payments and facilitation of surrogacy by third-party, non-profitable organisations, as well as progressions in societal attitudes and equality in relation to what constitutes marriage and familial relationship.
Lady Hale then focused on assessment of damages, referring to the principle on awarding damages established in Livingstone: to put the injured party in the position they would have been in had they not sustained the wrong. She noted, however, two qualifications under this principle: firstly, damages are irrecoverable if contrary to public policy; secondly, restorative steps taken and costs incurred must be reasonable. In application to the case, Lady Hale returned to the three issues detailed at the outset of the judgment.
Firstly, regarding whether damages could be claimed for non-commercial UK surrogacy costs using the respondent’s eggs, Lady Hale argued that societal and medico-technological change resulting in ‘acceptance and widespread use of assisted reproduction techniques, for which damages are payable’ indicated that it is ‘no longer possible’ to argue that bringing children into the world in this way is contrary to public policy. She distinguished this case from Briody on the basis that the latter presented minimal chances of success, endorsing Nelson J’s observation (EWHC) that where prospects of success are reasonable, if not good, the claim should succeed.
Secondly, regarding damages for surrogacy with donor eggs, Lady Hale rescinded her argument in Briody that this was ‘not truly restorative of what the claimant had lost’, and makes the notable statement that ‘it was probably wrong then and certainly wrong now’. She developed this by likening surrogacy to the replacement of an amputated limb with a prosthetic, and reinforced her altered viewpoint with reference to change in societal attitudes towards what constitutes a family.
The third and most difficult question was whether damages for commercial surrogacy abroad were recoverable; dissenting judges Lord Carnwath and Lord Reed diverged here. Lady Hale noted that UK courts could not enforce a foreign contract if it were contrary to public policy. However, in drawing comparison between surrogacy costs payable in the US and UK, she concluded that whilst cost in the US is higher, the only additional fees not yet lawful in the UK would be those paid to US lawyers and surrogacy agency. Finally, Lady Hale asserted that damages would be awarded to the commissioning parent, and under UK law it is not illegal for such to do acts prohibited by Surrogacy Arrangements Act.
Lady Hale concluded that award of damages for the cost of foreign commercial surrogacy no longer contravenes public policy. She does, however, impart three caveats for future cases: proposed treatments must be reasonable; foreign arrangements must be made within a well-established and safeguarded system; and costs must be reasonable.
Do you find the decision to be convincing? Give reasons for your answer.
In considering whether the decision in Whittington was convincing, one must look at each element of the threefold set of issues before the court, as well as the implications the decision and ratio decidendi will have on future cases.
In relation to the decision made on the first two issues, as to whether damages for surrogacy using the respondent’s own eggs and donor eggs were recoverable, Lady Hale’s detailed analysis on societal attitudes and medico-technological developments leading to wider acceptance of assisted reproduction, coupled with the comparison of surrogacy to prosthetic replacement of an amputated limb, is evocative and persuasive.
Her readiness to quash her previous view in relation to the restorative value of donor eggs is decisive and influential. Willingness to re-evaluate whether the view was originally correct, and remains so in the face of change, exemplifies the objective role of the judiciary. Distinguishing Briody on the prospects of successful outcome, extremely low in Briody but ‘reasonable, if not good’ in Whittington, indicates a wider, more pragmatic approach.
However, the decision made in relation to recoverability of damages for commercial surrogacy presents numerous difficulties; I side with the dissenting judgment on this matter.
UK surrogacy law undoubtedly presents contradictions. Under the Human Fertilisation and Embryology Act 2008, Lady Hale noted that parental orders are available following foreign surrogacy, provided the commissioning parents are the legal parents under the law where surrogacy took place. Professor Mary Welstead gives further analysis of this:
[Whittington] draws attention to the very confused state of the law relating to surrogacy in the UK and, in particular, the way in which it permits those intended parents, who go abroad to engage in commercial surrogacy, to be forgiven for their illegal behaviour and to be rewarded by the court. They are granted parental orders, supposedly, in the best interests of the child which they have illegally created…
The HFEA 2008 provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received in making the arrangements, handing over the child, giving agreement, or making the order, unless authorised by the court. Conversely, case law provides that payments other than reasonable expenses can be authorised retrospectively: In re Q. Welstead observes in relation to this:
‘The provisions which permit the retrospective authorisation of commercial surrogacy appear to be meaningless, given that the court, faced with intended parents in whose care the child has been placed and surrogate mothers who do not wish to keep the children for themselves, can do little other than grant a parental order.’
The availability of parental orders in such cases reflects the view expressed by Claire Fenton-Glynn that ‘English law, as developed through the jurisprudence of the High Court in the 30 years since [the Warnock Report] does not view commercial surrogacy as an intrinsic wrong’. Lady Hale herself expressed the view that UK law is moving closer towards that of the Californian model, observing that commercialisation does not inevitably entail exploitation.This is supported by the findings of a joint Law Commission Consultation Paper that ‘payment and altruism do not have to be mutually exclusive’.
Nonetheless, it is not the role of the court to rectify or modify the law. In doing so, the judiciary infringes on legislative process in bringing about change, invoking criticism for overstepping the boundaries through ‘judicial activism’. Lord Carnwath expresses ‘it is difficult to think of a better guide to where to draw the line in a highly sensitive area such as this than that indicated by Parliament.’
Lord Carnwath takes a broader perspective on the outcome of the case in stressing the importance of coherence and consistency in law. He makes reference to the objective expressed in Gray v Thames Trains Ltd that organs of the same legal system, criminal and civil law, maintain consistency; it is ‘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.’
Indeed, Lady Hale herself noted, with reference to case law, that UK courts cannot enforce a foreign contract which is contrary to UK policy; therefore, why would damages be awarded to facilitate payments under such contracts? The refutation to this argument – comparison of costs in the UK versus the US – does not approach the root of this issue, and relies in part on the allowance of retrospective authorisation by the court which has no legislative standing.
Furthermore, in response to the argument that societal approaches have changed in relation to surrogacy, Lord Carnwath points out that public opinion on the issue of commercialisation and commodification remains ‘deeply divided’, and the Law Commission does not propose material change to the law on commercial surrogacy.
How effective Lady Hale’s limiting factors on ‘reasonableness’ will be in practice is unsubstantiated. Davinder Baird provides a lawyer’s standpoint, expressing concern that the ruling will enable ‘more claims in respect of foreign commercial arrangements’, and over its practical implications. In addition to judicial overstepping and inconsistency highlighted by Lord Carnwath, Baird asserts ‘the most troubling aspect’ of Lady Hale’s caveats is they 'will potentially require Judges to make normative judgements about the relative merits of the reasonableness’.
Briody v St Helen’s and Knowsley Area Health Authority  EWCA Civ 1010  QB 856
Gray v Thames Trains Ltd  UKHL 33  1 AC 1339
In re Q (Parental Order)  11 WLUK 368
Livingstone v Rawyards Coal Co  5 App Cas 25, 39
Whittington Hospital NHS Trust v XX  UKSC 14  2 WLR 972
XX v Whittington Hospital NHS Trust  EWHC 2318 (QB)  11 WLUK 90
Legislation and other instruments
Children Act 1989
Human Fertilisation and Embryology Act 1990
Human Fertilisation and Embryology Act 2008
Surrogacy Arrangements Act 1985
Claire Fenton-Glynn, ‘Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements’ (2016) 24 Med LR 59.
Davinder Baird, ‘Whittington Hospital NHS Trust v XX  UKSC 14 – Progression over coherence?’ (Bevan Brittan, 17 June 2020) <https://www.bevanbrittan.com/insights/articles/2020/whittington-hospital-nhs-trust-v-xx-2020-uksc-14-progression-over-coherence/> accessed 14 November 2020.
Law Commissions, Building families through surrogacy: a new law (LCCP 244, SLCDP 167, 2019).
Mary Welstead, ‘Surrogate mothers as gestational nannies?’ (Family Law LexisNexis, 1 September 2020) <https://www.familylaw.co.uk/news_and_comment/surrogate-mothers-as-gestational-nannies> accessed 14 November 2020.
Mary Welstead, ‘The award of damages to enable surrogacy’ (Family Law LexisNexis, 20 December 2017) <https://www.familylaw.co.uk/news_and_comment/the-award-of-damages-to-enable-surrogacy> accessed 14 November 2020.
 Whittington Hospital NHS Trust v XX  UKSC 14  (‘Whittington’).  Whittington (n 1) .  XX v Whittington Hospital NHS Trust  EWHC 2318 (QB)  (‘XX’).  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) .  Human Fertilisation and Embryology Act 1990 s 27; Human Fertilisation and Embryology Act 2008 s 33.  Children Act 1989 s 2(9).  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) .  Briody v St Helen’s and Knowsley Area Health Authority  EWCA Civ 1010.  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) -.  Livingstone v Rawyards Coal Co  5 App Cas 25, 39.  Whittington (n 1) .  Whittington (n 1) -.  Whittington (n 1) .  XX (n 4) .  Whittington (n 1) -.  Whittington (n 1) .  Whittington (n 1) .  Surrogacy Arrangements Act 1985 ss 2(1), 2(2)(b).  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) -.  Whittington (n 1) .  XX (n 5) .  Human Fertilisation and Embryology Act 2008 ss 54, 54A.  Whittington (n 1) .  Mary Welstead, ‘The award of damages to enable surrogacy’ (Family Law LexisNexis, 20 December 2017).  Human Fertilisation and Embryology Act 2008 ss 54(8), 54A(7).  In re Q (Parental Order)  11 WLUK 368.  Mary Welstead, ‘Surrogate mothers as gestational nannies?’ (Family Law LexisNexis, 1 September 2020).  Claire Fenton-Glynn, ‘Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements’ (2016) 24 Med LR 59, 67.  Whittington (n 1) .  Law Commissions, Building families through surrogacy: a new law (LCCP 244, SLCDP 167, 2019) para. 2.14.  Whittington (n 1) .  Gray v Thames Trains Ltd  UKHL 33  Whittington (n 1) .  Whittington (n 1) .  Whittington (n 1) .  Davinder Baird, ‘Whittington Hospital NHS Trust v XX  UKSC 14 – Progression over coherence?’ (Bevan Brittan, 17 June 2020).