Bianca Jackson is a family law barrister at Coram and has a busy and diverse practice in all aspects of children law. She is highly knowledgeable about the medical science, case law, and the statutory provisions related to assisted reproduction, and has lectured and published numerous articles on the subject.
In this article she investigates the recent Supreme Court judgment in Whittington Hospital NHS Trust v XX 
The law of England and Wales has a complex relationship with commercial surrogacy. On one hand, negotiating a commercial surrogacy arrangement is an offence under s.2(1) of the Surrogacy Arrangements Act 1985 (“SAA 1985”) and, pursuant to s.54(8) of the Human Fertilisation Act 2008 (“HFEA 2008”), the court must be satisfied that no money other than reasonable expenses has been exchanged before making a parental order. On the other, neither the surrogate mother nor the intending parent(s) are guilty of an offence if they enter into a commercial arrangement (s.2(2) of the SAA 1985) and the court can (and does) retroactively approve payments to a surrogate (s.54(8) of the HFEA 2008).
The recent Supreme Court judgment in Whittington Hospital NHS Trust v XX  UKSC 14, which was reported last week, further highlights this tension. The case concerned a woman, XX, who as a result of medical negligence by Whittington Hospital (“the Hospital”) developed cervical cancer. By the time the cancer was diagnosed, the recommended treatment option was chemo-radiotherapy, which would result in XX being unable to bear children. As such, prior to commencing treatment, XX underwent a round of ovarian stimulation and had eight eggs frozen in storage for later use.
In June 2017, XX mounted a civil medical negligence claim against the Hospital seeking renumeration for, inter alia, the cost of four commercial surrogacy arrangements, to be carried out in California where commercial surrogacy is legal and binding [XX v Whittington Hospital NHS Trust  EWHC 2318 (QB)]. Though the Hospital admitted liability and awarded XX significant damages for long-term disability and psychiatric injury, it opposed paying damages in respect of XX’s infertility. The court at first instance awarded XX damages for the cost of two domestic, “altruistic” surrogacies using the claimant’s own eggs but refused the claim for surrogacy costs in California on the basis that that commercial surrogacy was contrary to UK public policy. Both XX and Whittington Hospital appealed.
On appeal, the Court of Appeal overturned the decision of the lower court and held that there was no public policy bar preventing XX from recovering damages for pursuing commercial surrogacy arrangements in California [XX v Whittington Hospital NHS Trust  EWHC 2318 (QB)]. In particular, Lord Justice McCombe noted that whilst SAA 1985 prohibited commercial surrogacy in England and Wales, it did not purport to legislate for any country other than the UK nor did not prohibit XX from pursuing commercial surrogacy in another jurisdiction where said practice was legal. The Court of Appeal also rejected the decision of the first instance court that damages should only be awarded for surrogacy arrangements that utilised XX’s own eggs.
The Hospital appealed and the matter was heard by the Supreme Court in December 2019. The questions before the court were threefold: (i) were damages to fund surrogacy arrangements using XX’s eggs recoverable? (ii) if so, were damages to fund surrogacy arrangements using donor eggs recoverable? and (iii) in either event, were damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable? By a majority of 3-2, the Supreme Court answered in the affirmative to all three questions and rejected the Hospital’s appeal. In respect of questions (i) and (ii), the court’s decision was influenced by the changes in social attitudes towards what constitutes a family and the success rate of assisted reproduction; where the prospects of success of assisted reproduction are reasonable, they can attract an award.
It is the court’s consideration of third question, however, that underscores the paradoxical approach to commercial surrogacy in UK law. The court held that it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy arrangement. The court noted that many of the expenses claimed for the Californian surrogacy arrangement would have been recoverable under a domestic surrogacy arrangement, for example, the cost of egg donation and fertility treatment . Likewise, whilst the payment to a surrogate mother in California would be higher than the reasonable expenses allowed for in this jurisdiction, it was likely that they would have been retroactively approved by the court, regardless of whether they were paid here or abroad, and therefore could also be recovered . In respect of those expenses that would be unlawful in this jurisdiction, namely payments to the American lawyers and the surrogacy agency, the court held that these should not “taint” all the other items in the bill [50-51]. In short, the court maintained that expenses for a foreign commercial surrogacy were recoverable provided that the programme of treatment, the decision to seek a surrogacy arrangement abroad, and the costs of the treatment were all “reasonable” .
In the context of tort law, the decision of the Supreme Court is undoubtedly correct: renumeration for foreign commercial surrogacy arrangements would put XX, as far as possible, back into the position in which she would have been had the tort not been committed, i.e. she would be able to have children. However, notwithstanding the changing social attitudes towards commercial surrogacy, it does not sit comfortably with the current statutory law. As the dissenting remarks of Lord Carwath (supported by Lord Reid) stress, awarding damages in the civil court for conduct that is unlawful in the criminal court is contrary to the principle of coherence or consistency in a single system of law .
The difficulty, therefore, lies with the laws as they are currently drafted. If, as Whittington Hospital NHS Trust v XX  argues, attitudes to surrogacy generally – and commercial surrogacy in particular – have shifted, the statutory laws should reflect those changes. It is problematic for decisions to be made about modern families using legislative instruments that are both outdated and piecemeal. Indeed, the court should not have to struggle to interpret the law to reach outcomes that are fair and just.