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

Date:6 OCT 2019
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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 After outlining English law on surrogacy and the significant, yet outdated, decision in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2002] QB 856, the authors discuss the High Court’s decision in XX.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, XX has not created new law and is simply an application of settled legal principles in the context of modern society. However, this will not be the last word on XX; the defendant Trust’s appeal to the Supreme Court will be heard in December 2019. It is hoped that this article will be of interest to both clinical negligence and family practitioners.

The full article will be published in the October issue of Family Law

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