Commercial surrogacy: the birth of a new head of loss in clinical negligence claims

Anthony Searle Barrister Serjeants' Inn Chambers
Anne Kavanagh Senior Associate Irwin Mitchell LLP

This article analyses XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 [2019] PIQR Q4 the first case in which a court has awarded damages for the costs of overseas commercial surrogacy. After outlining English law on surrogacy and the significant yet outdated decision in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010 [2002] QB 856 the authors discuss the High Court’s decision in XX. Thereafter they focus on the key aspects of the Court of Appeal’s judgment namely public policy (following Patel v Mirza [2016] UKSC 42 [2017] AC 467) and the distinction between ‘own egg’ and ‘donor egg’ surrogacy. The authors consider the impact of the judgment and set out learning points for practitioners. It is envisaged that claimants will seek to rely on XX in a variety of claims but to varying degrees of success the principle of reasonableness being the key limiting factor. The authors’ thesis is that despite being an important decision...

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