Dec 20, 2018
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Damages for the costs of commercial surrogacy: public policy is not rigid

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The Court of Appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 has overturned the High Court’s decision ([2017] EWHC 2318 (QB)) by awarding damages to an infertile claimant for the costs of commercial surrogacy in California.

The first instance decision

In a previous blog post from September 2017 entitled ‘Surrogacy: The Birth of a New Head of Loss’, I discussed the first instance judgment in XX. Following the Trust’s admission that its failures led to Ms X’s infertility, Sir Robert Nelson awarded £74,000 to Ms X for the costs of UK-based surrogacy using her own eggs but not those of a donor. Claire Watson represented the Claimant at first instance.

Whilst the High Court’s decision was significant – this was the first case in which damages for the costs of UK surrogacy had been awarded – it was not the decision that Ms X wanted. She appealed to the Court of Appeal in order to recover the costs of Californian commercial surrogacy. The one-and-a-half-day hearing took place in early November and judgment was handed down on 19 December 2018. On appeal, Claire was led by Christopher Johnston QC.

Commercial surrogacy arrangements are lawful and binding in California, which has a well-established system. In contrast, only non-commercial surrogacy is permitted in the UK, and all surrogacy arrangements are unenforceable. The Law Commission has noted that there are ‘significant problems’ with the Surrogacy Arrangements Act 1985 and it aims to publish a consultation paper on law reform by spring 2019.



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