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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Whittington Hospital NHS Trust v XX [2020] UKSC 14 (01 April 2020) URL: https://www.bailii.org/uk/cases/UKSC/2020/14.html Cite as: (2020) 174 BMLR 1, [2020] WLR(D) 207, [2020] UKSC 14, [2020] Med LR 209, [2021] AC 275, [2020] 4 All ER 93, [2020] 2 WLR 972, [2020] PIQR P12 |
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THE COURT ORDERED that no one shall publish or reveal the name or address of the Respondent who is involved in these proceedings or publish or reveal any information which would be likely to lead to the identification of the Respondent or of any member of her family in connection with these proceedings.
On appeal from: [2018] EWCA Civ 2832
JUDGMENT
Whittington Hospital NHS Trust (Appellant) v XX (Respondent)
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before
Lady Hale Lord Reed Lord Kerr Lord Wilson Lord Carnwath
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JUDGMENT GIVEN ON |
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1 April ![]() |
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Heard on 16 and 17 December 2019 |
Appellant |
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Respondent |
Lord Faulks QC |
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Christopher Johnston QC |
Charles Feeny |
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Claire Watson |
(Instructed by Bevan Brittan LLP (London)) |
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(Instructed by Irwin Mitchell LLP (London)) |
LADY HALE: (with whom Lord Kerr and Wilson agree)
The history
6. Liability was admitted and judgment entered in May 2016. Damages were assessed, after a hearing in June 2017, by Sir Robert Nelson in September 2017: [2017] EWHC 2318 (QB); [2018] PIQR Q2. Much of his judgment relates to matters other than the surrogacy claim. In relation to surrogacy he held that he was bound by the decision of the Court of Appeal in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856, first, to reject the claim for commercial surrogacy in California as contrary to public policy, and second, to hold that surrogacy using donor eggs was not restorative of the claimant’s fertility. Non-commercial surrogacy using the claimant’s own eggs, however, could be considered restorative of the claimant’s fertility. Hence he awarded her the sum of £37,000 per pregnancy, a total of £74,000.
7. 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 the two own-egg surrogacies. The Court of Appeal (McCombe, King and Nicola Davies LJJ) dismissed the cross appeal and allowed the claimant’s appeal on both points: [2018] EWCA Civ 2832; [2019] 3 WLR 107. Public policy was not fixed in time and had now to be judged by the framework laid down by this court in Patel v Mirza [2016] UKSC
42; [2017] AC 467. Attitudes to commercial surrogacy had changed since Briody; perceptions of the family had also changed and using donor eggs could now be regarded as restorative.
8. The hospital now appeals to this court. There are three issues:
(1) Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
(2) If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
(3) In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?
The UK law relating to surrogacy
12. That mechanism is to be found in the scheme for making parental orders, which has existed since 1994 but is now contained in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008. Applications can be made jointly by a married couple, by civil partners or by two people who are living as partners in an enduring family relationship (but are not within the prohibited degrees of relationship, such as siblings) (section 54(2)). Applications can also now be made by a single person (following the insertion of section 54A(1) by the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 (SI 2018/1413)),
made after a declaration that their exclusion was incompatible with the right to respect for private and family life in article 8 of the European Convention on Human Rights (ECHR): In re Z (Surrogate Father: Parental Order) (No 2) [2016] EWHC 1191 (Fam); [2017] Fam 25. All applicants must be aged at least 18 when the order is made. The child must have been carried by another woman as a result of the placing in her of eggs and sperm, or an embryo, or her artificial insemination. The gametes of at least one of the applicants must have been used to create the embryo. This may have been done anywhere in the world, so the procedure is available after a foreign surrogacy and if the commissioning parents are the legal parents according to the law of the place where that took place. Without it, they would not be recognised as legal parents here.
13. Applications cannot be made until after the child is born but must then be made within the period of six months beginning with the day on which the child was born (section 54(3); section 54A(2)). Nevertheless, in In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam); [2015] Fam 186, Sir James Munby, President of the Family Division held that the deadline could be relaxed and the courts now frequently make parental orders in respect of children who are much older (in A v C [2016] EWFC 42; [2017] 2 FLR 101, for example, as old as 12 and 13).
14.
style='font:7.0pt "Times New Roman"'> The child must have his home with the applicants or sole applicant both at the time of making the application and at the time of making the order (section 54(4)(a), section 54A(3)(a)). This too was liberally interpreted in In re X, as not requiring the applicants to have a single family home, as long as the child had his home with both of them. This has been applied in many cases where the commissioning parents have separated either before the application or before it is granted. At least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man, both at the time of the application and at the time of the order (section 54(4)(b), section 54A(3)(b)). Residence here is neither necessary nor sufficient.
15. The court must be satisfied that the woman who carried the child and anyone else who is a legal parent (not being an applicant) has freely and with full understanding of what is involved agreed unconditionally to the making of the order. The woman’s agreement is ineffective if given less than six weeks after the child’s birth. The only exceptions to the agreement requirement are if the person cannot be found or is incapable of giving agreement. The surrogate mother may therefore refuse her consent even if she has handed over the child. Not only that, another legal parent may do so, even if the surrogate has agreed. In In re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam); [2017] 2 FLR 217, both the surrogate and her husband refused to agree to the order even though they had handed over the child to the commissioning parents. All the court could do was make a child arrangements order which gave them parental responsibility but left the child a member of the surrogate’s family. Theis J commented that an adoption order would be inappropriate as the parents would be asking to adopt their own children: a parental order recognises their genetic link to the child. She did, however, adjourn the parental order application generally in the hope of a change of mind or a change in the law, as the President had done in In re Z.
16. The court must also be satisfied that no money or other benefit, other than for expenses reasonably incurred, has been given or received by any applicant for making the arrangements, handing over the child, giving agreement, or making the order, unless authorised by the court (section 54(8), section 54A(7)). This might be thought to discourage the making of parental orders following a foreign (or indeed any) commercial surrogacy. But what is the court to do when confronted with a fait accompli? It was soon held that payments other than reasonable expenses could be authorised retrospectively, after they had been made: In re Q (Parental Order) [1996] 1 FLR 369. In In re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam); [2009] Fam 71, which was the first case dealing with payments for a foreign commercial surrogacy, Hedley J asked himself whether the sums paid were disproportionate to reasonable expenses, whether the applicants were acting in good faith in their dealings with the surrogate, and whether they were party to any attempt to defraud the authorities. This set the tone. The Law Commissions are not aware of any case in which a parental order has been refused on the basis of payments which exceed reasonable expenses (Building families through surrogacy: a new law (2019) (LCCP 244, SLCDP 167), para 5.93). This is not surprising: the deed has been done, the child is here living with the commissioning parents, and his welfare will almost always require that he is not left legally parentless (and possibly also stateless). This has led one academic commentator to remark 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” (Claire Fenton-Glynn, “Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements” (2016) 24 Med LR 59, 67).
17. Certain provisions in the Adoption and Children Act 2002 and its equivalent in Scotland are applied to parental order applications by Regulations (currently the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 (SI 2018/1412),
replacing those in 2010). These include the requirement that the court treat the welfare of the child as its paramount consideration: the court is required to have regard to the welfare of the child, not only during childhood, but throughout his life. As the Law Commissions comment, although laudable, this creates a tension: welfare considerations will almost always point towards making a parental order but this makes it difficult for the court to police even the requirements of sections 54 and 54A, let alone to enforce any public policy against commercial surrogacy arrangements which might be deduced from the Surrogacy Arrangements Act 1985.
“Even in compelling medical circumstances the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case. That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection.”
Hence they recommended that the criminal law should ban all agencies, whether profit or non-profit-making, recruiting surrogates and making surrogacy arrangements; and also ban all professionals from knowingly assisting in the establishment of a surrogate pregnancy; and that surrogacy agreements should be illegal contracts and unenforceable (paras 8.18, 8.19). The minority (Dr Wendy Greengross and Dr David Davies) took the view that “the question of exploitation of the surrogate mother, or the treating of her as a means to other people’s ends, is not as clear-cut a moral issue as our colleagues suggest” (para 3). They agreed that there was no place for commercial surrogacy agencies, as with commercial adoption agencies; but they disagreed with preventing gynaecologists from helping couples to achieve a surrogate pregnancy; they thought that arrangements made by a regulated non-profit-making body should not be illegal; and that payments made to a surrogate mother should not be a barrier to adoption by the commissioning couple: “most surrogate mothers would expect payment for their services” (para 7).
Briody v St Helen’s and Knowsley Area Health Authority
Developments since Briody
31. The law now recognises and supports same sex relationships and parenthood in almost exactly the same way as it recognises and supports opposite sex relationships. Civil partnerships between same sex couples were introduced throughout the UK by the Civil Partnerships Act 2004. Gay marriage was introduced in England and Wales by the Marriage (Same-sex Couples) Act 2013, in Scotland by the Marriage and Civil Partnership (Scotland) Act 2014, and in Northern Ireland by the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (SI 2019/1514). Same sex couples have been able to adopt jointly in England and Wales since the Adoption and Children Act 2002 and in Scotland since the Adoption and Children (Scotland) Act 2007. In In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173, this Court declared the exclusion of unmarried couples from the Northern Ireland Adoption Order incompatible with the equal enjoyment of the right to respect for family life protected by articles 8 and 14
of the ECHR. Obviously, male same sex couples can achieve parenthood only through adoption or surrogacy and there is evidence of a growing demand from them for surrogacy arrangements. The UK surrogacy organisations report a growing proportion of male same sex couples using their services, as many as 50% of those using COTS and Brilliant Beginnings (Building families through surrogacy: a new law, paras 3.18 to 3.21).
32. All of this supports the observations of King LJ in this case (para 101):
“It is unnecessary to resort to statistics or research in order to appreciate the social changes in the years since Briody. These changes have led to the current acceptance of an infinite variety of forms of family life of which single sex, single person and so called ‘blended families’ are but examples. The creation of these families is often facilitated consequent upon the advances in fertility treatment including the acceptance of and increased use of donor eggs.”
“The government supports surrogacy as part of the range of assisted conception options. Our view is that surrogacy is a pathway, starting with deciding which surrogacy organisation to work with, deciding which surrogate or intended parent(s) … to work with, reaching an agreement about how things will work, trying to get pregnant, supporting each other through pregnancy and then birth, applying for a parental order to transfer legal parenthood and then helping your child understand the circumstances of their birth. This guidance gives more information about each stage.”
Not only that, it was the Department of Health and Social Care which asked the Law Commissions to consider reforms to the law of surrogacy in the United Kingdom.
36. It is probable that most gestational surrogacy arrangements in this country involve treatments provided by a clinic licensed by the HFEA. This is required where IVF or embryo transfer are involved. The HFEA’s first Code of Practice had one paragraph about surrogacy: this advised that, because either the carrying mother, and in certain circumstances her husband or partner, or the commissioning parents might become the child’s legal parents, the welfare of any resulting child should be assessed in relation to both sets of parents, and any risk of disruption to the child’s early care and upbringing in the event of a dispute between them considered (para 3.16.a). The most recent, ninth, edition of the Code of Practice, version 2 (2019), has a section on “The welfare of the child assessment process for surrogacy arrangements” which emphasises the need for a standard operating procedure for centres offering surrogacy treatment (paras 8.9 to 8.13); and a whole chapter (paras 14.1
to
14.14)
on surrogacy generally which emphasises the need for full information and discussion about the legal and other implications, as well as counselling, for both the surrogate and the commissioning parents. While this may be off-putting for some, and centres are advised to be alive to the vulnerability of all parties, there is no suggestion that such arrangements should be viewed with particular suspicion or discouraged.
“Whilst we acknowledge that there is a lack of public attitudinal research in this area, the research that exists suggests that public attitudes to surrogacy also now stand in stark contrast to the prevailing hostile attitudes at the time of the [Surrogacy Arrangements Act] 1985. The available research reflects the fact that the legislation is now out of step with attitudes towards surrogacy.”
They cite a YouGov poll in 2014 showing that 59% of adults in Great Britain supported using gestational surrogacy to have children.
“In that respect, we make a provisional proposal for reform that would enable legal parenthood granted overseas to be recognised in the UK, only after an appraisal of the law and practice of surrogacy in each country. We hope that such a development would encourage UK intended parents who do look for an international surrogacy arrangement to use countries where there is a level of confidence in the protection provided to women who become surrogates.”
Application to this case
40. This case is about the assessment of reasonable damages to compensate a woman who has been wrongly deprived of the ability to bear her own children. With the greatest of respect to the argument on behalf of the claimant, accepted by the Court of Appeal, it is not about the illegality defence and the new framework adopted in Patel v Mirza [2017] AC 467. Nor is it to be likened to a case like Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC 1339, where the injury suffered by the claimant led to his committing a serious criminal offence and suffering the consequences of doing so, for which he claimed but was denied compensation. Nothing which the claimant proposes to do involves a criminal offence either here or abroad. Her preferred solution is a Californian surrogacy which is lawful there and UK law does not prohibit her from arranging or taking part in it. Her second-best solution would be lawful surrogacy arrangements here.
41. The general principle upon which damages in tort are assessed was stated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39:
“I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”
There are qualifications to that principle, of course.
42. The first is that some heads of damages which would readily fall within that principle are nevertheless irrecoverable because to allow this would be contrary to legal or public policy. A well-known example is McFarlane v Tayside Health Board [2000] 2 AC 59. The Inner House of the Court of Session held that a couple who had a child after the husband had had 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. The House of Lords held that they could not claim the costs of bringing up a healthy child. They gave a variety of reasons for this, but they all amount to a policy against awarding what would be the normal measure of the claimants’ loss.
49. That leaves only the most difficult question: what about the costs of foreign commercial surrogacy? Surrogacy contracts are unenforceable here. It is well-established that the UK courts will not enforce a foreign contract which would be contrary to public policy in the UK: see Rousillon v Rousillon (1880) 14
Ch D 351; Israel Discount Bank of New York v Hadjipateras [1984] 1 WLR 137. Why then should the UK courts facilitate the payment of fees under such contracts by making an award of damages to reflect them?
54. With those caveats, therefore, I would dismiss this appeal.
LORD CARNWATH: (dissenting) (with whom Lord Reed agrees)
56. On the first two issues identified by Lady Hale (para 8), I agree with her reasoning and conclusions. I differ only on the last issue: damages to fund the cost of commercial surrogacy arrangements in a country (in this case California) where this is not unlawful. As I think Lady Hale accepts, her conclusion on that issue is a departure from the clear, indeed emphatic, position on this issue, expressed in 2001 in her leading judgment in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856.
“… that the proposals put to her were contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it.” (para 15)
By contrast, she found it impossible to say that the claimant’s new proposals were “contrary to public policy in that sense” (para 16). The remainder of the judgment is devoted largely to that aspect.
59. I agree with her (para 40) that the resolution of this issue is not assisted by reference to recent judgments of this court on the scope of the illegality defence (such as Patel v Mirza [2016] UKSC 42; [2017] AC 467). A commercial surrogacy arrangement, such as is proposed, is not in itself unlawful in the country in which it would take place. Nor is the claimant’s participation in such an arrangement from this country. For that reason I agree that the case cannot be likened directly to a case like Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339, which involved a serious criminal offence by the claimant. However that is not the end of the enquiry. As Lady Hale recognises (para 42), there is a further question of legal or public policy perhaps best exemplified by McFarlane v Tayside Health Board [2000] 2 AC 59.
60. It is not easy to extract a single ratio to support the conclusion in that case that the damages could not extend to the cost of bringing up a healthy but unwanted child. However further light was cast by the speeches in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309, in which the House had to consider the application of the McFarlane principles to the birth of an unwanted child to a mother with a severe visual handicap. Lord Bingham (para 6) spoke of the different approaches and different reasons adopted by the members of the House in McFarlane but thought it “clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy)”. He explained:
“The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a National Health Service always in need of funds to meet pressing demands would rightly offend the community’s sense of how public resources should be allocated. Kirby J was surely right to suggest in Cattanach v Melchior [2003] HCA 38, para 178) that:
‘Concern to protect the viability of the National Health Service at a time of multiple demands upon it might indeed help to explain the invocation in the House of Lords in McFarlane of the notion of ‘distributive justice’.”
61. To similar effect Lord Steyn said (para 29):
“The House did not rest its decision on public policy in a conventional sense … Instead the Law Lords relied on legal policy. In considering this question the House was bound, in the circumstances of the case, to consider what in their view the ordinary citizen would regard as morally acceptable. Invoking the moral theory of distributive justice, and the requirements of being just, fair and reasonable, culled from case law, are in context simply routes to establishing the legal policy.”
62. Lord Millett also spoke of “legal policy” (para 105):
“In their speeches [in McFarlane] the individual members of the Appellate Committee all based this conclusion on legal policy, though they expressed themselves in different terms. My noble and learned friend, Lord Steyn, spoke of distributive justice; he asked himself what would be morally acceptable to the ordinary person. Others spoke of what was ‘fair, just and reasonable’ - which expresses the same idea. I spoke openly of legal policy. I said, at p 108:
‘The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say “our more or less inadequately expressed ideas of what justice demands” (see Prosser & Keeton on Torts, 5th ed (1984), p 264). This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.’
Others too made it clear that this was not the same as public policy in the traditional sense of that expression. It would not have been contrary to public policy to award damages to the pursuers in McFarlane any more than it would be contrary to public policy to award damages for breach of contract beyond the limits imposed by the rule in Hadley v Baxendale (1854) 9 Exch 341. But in both cases the denial of damages rests upon policy considerations.”
64. Although this case is not concerned with illegality as such, the underlying principle of coherence or consistency in the law is of broader application. Although, as noted above, Gray v Thames Trains Ltd is not directly relevant, the speeches of Lord Hoffmann and Lord Rodger contain a valuable discussion of the underlying principle. The same idea is echoed in some of the judgments in Patel v Mirza (see para 155 per Lord Neuberger; para 191 per Lord Mance: “the law must aspire to be a unified institution, the parts of which - contract, tort, the criminal law - must be in essential harmony” quoting McLachlin J in Hall v Hebert [1993] 2 SCR 159, 175-176).
“77. In British Columbia v Zastowny [2008] 1 SCR 27, 38, para 23, 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. That such a policy exists is beyond question. In Zastowny and the preceding cases, the need was to ensure that the civil and criminal courts were consistent in their handling of the plaintiff’s criminal conduct and its consequences. But that is simply one manifestation of a desirable attribute of any developed legal system. 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 is that its provisions should interrelate and interact so as to achieve a consistent application of its overall policy objectives. Complete harmony may well be harder to achieve in an uncodified system - hence the constant attention paid by the classical jurists to the problem - since different remedies will 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 are 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 this 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 is desirable for the criminal and civil courts to be consistent in the way that they regard what the claimant did. As Samuels JA observed in State Rail Authority of New South Wales v Wiegold [(1991)] 25 NSWLR 500, 514, failure to do so would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.”