Christopher Johnston QC and Claire Watson, instructed by Alison Eddy and Anne Kavanagh of Irwin Mitchell, have succeeded on appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832. Acting for the Claimant, Chris and Claire successfully argued that the High Court’s decision not to award her damages for the costs of commercial surrogacy in California was wrong.

Ms X developed cervical cancer and was left infertile due to the Hospital Trust’s negligent failure to correctly report on a number of smear tests and biopsies. At first instance, Sir Robert Nelson held that Ms X could recover limited expenses for UK-based surrogacy using her own eggs but not those of a donor. That decision, the first of its kind, was significant in itself. However, Ms X appealed, arguing that the judge was wrong to follow Hale LJ’s judgment in Briody [2002] QB 856 and hold that commercial surrogacy arrangements were considered to be contrary to public policy.

The Court of Appeal (comprising McCombe LJ, King LJ and Nicola Davies LJ) unanimously allowed the appeal and dismissed the Trust’s cross-appeal. For the first time, the Court has held that, in the light of the Supreme Court’s decision on the concept of illegality in Patel v Mirza [2016] UKSC 42, there is no public policy bar to the recovery of damages for the costs of commercial surrogacy in California. Ms X proposed to do nothing that was unlawful either in the UK or in California. In addition, in a departure from Hale LJ’s dicta in Briody, it was held that damages for the cost of ‘donor egg’ surrogacy had the effect of putting Ms X as nearly as possible in the position she would have been in had the Trust not been negligent. The distinction between ‘own egg’ and ‘donor egg’ surrogacy was artificial and could not be maintained.

The Trust was refused permission to appeal by the Court of Appeal.

Lord Faulks QC and Charles Feeny, instructed by Daniel Morris of Bevan Brittan, acted for the Trust.

See our UK Healthcare Law Blog post on the High Court’s decision below (September 2017) here. A further post on the Court of Appeal’s judgment today will follow shortly. A copy of today’s judgment is here.