Circumstances in which damages can be awarded to fund costs of commercial surrogacy arrangements in a foreign country
Whittington Hospital NHS Trust v XX
 UKSC 14
Supreme Court of the United Kingdom
Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Carnwath, SCJJ
April 1, 2020
Reported by Faith Wanjiku & Ian Otenyo
Tort Law – negligence – claim for damages for negligence arising from commercial surrogacy arrangements – factors to be considered to recover damages to fund the cost of commercial surrogacy arrangements – whether damages could be recovered to fund surrogacy arrangements using a claimant’s own eggs – Surrogacy Arrangements Act 1985, section 2
Health Law – Reproductive Health – surrogacy arrangements – donor-egg surrogacy – commercial surrogacy arrangements – claim seeking commercial surrogacy arrangements with the possible chances of a successful fertility outcome – whether damages could be recovered to fund surrogacy arrangements using a claimants own eggs where the chances of a successful fertility outcome were hindered by the defendant’s negligence – Surrogacy Arrangements Act, 1985, section 2
The respondent and her partner opted to have eight of her eggs collected and frozen so that she can have four children through foreign surrogacy arrangements in California. They decided to have two children using her eggs and his sperm, and two more children using donor eggs and his sperm.
The appellant had negligently reported cervical smear tests and cervical biopsies which led to the advancement of cervical cancer that was not detected. As such, she was not able to bear her own children. The trial court rejected the claim for commercial surrogacy in California as contrary to public policy, and held that surrogacy using donor eggs was not restorative of the claimant’s fertility. The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross-appealed against the award for own-egg surrogacies. The Court of Appeal dismissed the cross-appeal and allowed the appeal. The hospital then appealed to the Supreme Court.
- What factors could be considered for one to recover damages to fund the cost of commercial surrogacy arrangements in a country where it was not unlawful?
- What should be the measure of damages for a woman who had been wrongfully deprived of the ability to bear children herself while factoring pain, suffering and loss of amenity?
- Whether damages could be recovered to fund surrogacy arrangements using a claimant’s own eggswhere the chances of a successful fertility outcome was hindered by a defendant’s negligence.
- Whether damages could be recovered to restore the claimant’s ability to bear children.
- Whether the interests of the surrogate children were guaranteed and protected through the proposed commercial surrogacy arrangement.
Relevant provisions of the law
Surrogacy Arrangements Act 1985, section 2 (1) [UK]
No person shall on a commercial basis do any of the following acts in the United Kingdom, that is-
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to negotiate the making of a surrogacy arrangement, or
(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements; and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.
Human Fertilisation and Embryology Act 2008, section 33 [UK]
(1)The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.
(2) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.
(3) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.
Held by majority:
- The general principle upon which damages in tort was that where any injury was to be compensated by damages, should as nearly as possible award a sum of money which would put the party who had been injured, or who had suffered, in the same position as he would have been in if he had not sustained the wrong for which he was then getting his compensation or reparation.
- There were qualifications to that principle. First, some heads of damages which would readily fall within that principle were nevertheless irrecoverable because to allow that would be contrary to legal or public policy. Where a couple who had a child after the husband had undergone a vasectomy, allegedly because of negligent advice, could claim damages, not only for the pregnancy and birth, but also for the cost of bringing up the child they never meant to have. They were not awarded the costs of bringing up a healthy child. It would be against public policy to award what would be the normal measure of the claimants’ loss.
- The steps taken to restore the respondent’s ability to bear her own children should be reasonable as well at the attendant costs incurred.
- The damages would be awarded to the claimant, the commissioning parent. It was not against the law in the United Kingdom for a commissioning parent to do any of the acts which were prohibited by section 2(1) of the Surrogacy Arrangements Act 1985. Nor was it against the law in the United Kingdom for an intending surrogate to do so.
- It had never been the object of that legislation to criminalise the surrogate or commissioning parents. The only deterrent was the risk that the court hearing an application for a parental order could refuse retrospectively to authorise the payments. There was no evidence that that had ever been done. The court’s paramount consideration was the welfare of the child involved, which would almost certainly be best served by cementing his home and his family links with the commissioning parents.
- The court considered all the other developments which took place since the decision in Briody v St Helen’s and Knowsley Area Health Authority  EWCA Civ 1010;  QB 856. Since then, the courts have bent over backward to recognise the relationships created by surrogacy, including foreign commercial surrogacy. At the moment, the government supports surrogacy as a valid way of creating family relationships, although there were no plans to allow commercial surrogacy agencies to operate in the country. The use of assisted reproduction techniques is increasingly becoming widespread and socially acceptable. The Law Commissions have provisionally proposed a new pathway for surrogacy which, if accepted, would enable the child to be recognized as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model, but with greater safeguards. While the risks of exploitation and commodification were heightened in commercial surrogacy, they were not thought an insuperable ethical barrier to properly regulated arrangements.
- For all those reasons, it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy. However, that did not mean that such damages, such as were claimed in the instant case, would always be awarded. There were some important limiting factors.
- First, the proposed programme of treatments should be reasonable. There were to be good reasons to think that, but for the negligence, the claimant would have had the number of children now proposed, but there were not. Second, it had to be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the United Kingdom. The foreign country should have a well-established system in which the interests of all involved, were properly safeguarded. Third, the costs involved should be reasonable. It should certainly not be taken for granted that a court would always sanction the sorts of sums of money which have been claimed here.
Per Lord Carnwathand Lord Reed, SCJJ (Dissenting Opinion)
- It would be inappropriate for the civil courts to award damages on the basis of conduct which, if undertaken in the United Kingdom, would offend its criminal law.
- It was also apparent from recent studies,such as the Second Report of the Surrogacy UK Working Group on Surrogacy Law Reform December 2018, that public attitudes remained deeply divided.
- There had been no change to the critical laws affecting commercial surrogacy. It would therefore, not be consistent with legal coherence for the courts to allow damages to be awarded to fund commercial surrogacy.
- The desirability of different organs of the same legal system adopting a consistent approach to the same events should be maintained. Rothstein J treated the need to preserve the integrity of the justice system, by preventing inconsistency in the law, as a matter of judicial policy that underlay the ex turpi causa doctrine. In other words, in the circumstances of that case the application of the ex turpi causa doctrine helped to promote the more fundamental legal policy of preventing inconsistency in the law.
- In the preceding cases, the need would be to ensure that the civil and criminal courts were consistent in their handling of the plaintiff’s criminal conduct and its consequences. In classical Roman law the jurists were at pains to ensure that the various civil law and praetorian remedies worked together in harmony in relation to the same facts. One of the hallmarks of a good modern code was that its provisions should interrelate and interact so as to achieve a consistent application of its overall policy objectives. Complete harmony would be harder to achieve in an uncodified system – hence the constant attention paid by the classical jurists to the problem since different remedies would have developed at different times and in response to particular demands.
- But the gradual drawing together of law and equity in English law illustrates the same pursuit of harmony and consistency. And, certainly, the courts would be conscious that inconsistencies should be avoided where possible. So, for instance, a court should not award damages in tort if a contractual claim based on the same events would be excluded by some term in the contract between the parties. Similarly, a court should not give a remedy on the ground of unjust enrichment if it would be tantamount to enforcing a contract which the law would treat as void in the circumstances.
- Likewise, in the present case, when considering the claim for loss of earnings, a civil court should bear in mind that it was desirable for the criminal and civil courts to be consistent in the way that they regard what the claimant did. The failure to do so would generate the sort of clash between civil and criminal law that was apt to bring the law into disrepute.
- As that passage makes clear, the objective was consistency or coherence between the civil and criminal law within a particular system of law. The fact that the laws of other jurisdictions and other systems would reflect different policy choices seemed to be beside the point. It would 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.
- It was true that there had been striking developments in society’s approach to many issues that affect family life, including surrogacy, as the Law Commission’s comprehensive report demonstrates. There was however no change to the critical laws affecting commercial surrogacy, which led to the refusal in 2001 of damages on that basis. Nor did the Law Commission propose any material change in that respect. It was also apparent from recent studies that public attitudes remained deeply divided. So long as that remained the state of the law on commercial surrogacy, it would not be consistent with legal coherence for the courts to allow damages to be awarded on a different basis. In short, I consider that the decision of the Court of Appeal was correct in 2001, and remains correct today.
Relevance to the Kenyan situation
In Kenya, most surrogacy cases lodged at the courts revolve around privacy rights of the parties involved and the preferred secrecy of surrogacy arrangements. Such rights are adequately provided for under Article 31 of the 2010 Kenyan Constitution. Though Kenya does not have an Act governing medically assisted procreation methodologies that is in force, the National Assembly is in the process of enacting the In-Vitro Fertilization Bill No 36 of 2014. As such, Kenyan courts may rely on foreign jurisprudence that address Kenyan cases involving assisted reproduction techniques and surrogacy arrangements.
In JLN & 2 others v Director of Children Services & 4 others , the court at paragraph 39 acknowledged that there is no law in Kenya regulating surrogacy arrangements. The court also held that surrogacy is not a hypothetical issue and that many Kenyans are resulting to surrogacy as an alternative to become parents especially for those who due to medical reasons cannot have their own children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a comprehensive legal framework.
It is worthy of note that, in the United Kingdom, commissioning parents are issued with parental orders, where either or both of them are the biological parents to the surrogate child. Where none of the commissioning parents are biologically related to the surrogate child, adoption orders are preferred. The Kenyan courts on the other hand, do not take into consideration the biological relationship that exists between the commissioning parents and the surrogate child when conferring parental rights. Instead, the Kenyan courts issue adoption orders to commissioning parents as a way of conferring parental rights despite either or both of them being biologically related to the surrogate child. It was held in AKN & 2 others v Attorney general & 5 others  that:
“While all the Petitioners and the 4th Respondent have agreed that an adoption order is the only appropriate relief, the 1st, 2nd 5th and 6th have raised doubts about the efficacy of such an order because Y is actually genetically the father of the twins and so how can he adopt his own child? To my mind, that issue is not important because what matters is how to confer parental status/parental responsibility upon the mother.”
From the instant case, the Supreme Court’s decision in the United Kingdom can adequately guide Kenyan litigants and the courts on how to deal with victims of torts whose remedy can be found in surrogacy arrangements obtained in foreign countries and the associated costs recovered from tort-feasors.