Last week's news that Patricia Briody has lost her case at the Court of Appeal should not come as a surprise. The court that originally heard her case recognised that she should be compensated for the 'disappointment and distress' that resulted from medical negligence leaving her unable to have children. But they did not see why damages for this should extend to the costs of using a surrogate mother. They worried that the chances of success using her own eggs, fertilised with her partner's sperm and implanted into a surrogate, would be low: when she brought the case she was already in her forties. In addition they stated that the US surrogacy agency that Ms Briody then planned to use was a violation of the principles of UK law.
The Court of Appeal was presented with new evidence: a British woman had volunteered to be a surrogate, thus no laws would be broken. She is thirty, therefore with her eggs, an attempt might be successful, if Ms Briody's stored embryos failed to implant. But the Appeal Court judges rejected this, saying it had no bearing on their decision.
But they can hide this decision within legal principle - in law, damages for negligence are meant to compensate for loss, to restore the claimant to the position they would have been in if the negligence had not occurred. The only way this could be the case is if money could restore her ability to have children. As the judges acknowledged, there may be some cases in which the costs of a surrogacy could be awarded: this may have been the case if Ms Briody were younger, and the chance of achieving a successful pregnancy was greater. But, the court stated that using donor eggs, fertilised by her partner's sperm and carried by a surrogate, defeated the entire object of her claim and would be in no sense restorative. She wanted to have children of her own, and if she neither provided the genetic material or carried the child, this would not actually be the case. It would be trying to make up for her loss by giving her something different. And that's just not how the law works.
But this is the point that can be questioned. Although we might like to think that attitudes have changed towards surrogacy in particular, and family forming in general, this does not seem to be the case when courts are faced with unusual cases such as Ms Briody's. Instead, genetics and traditional understandings of the ways we go about getting children are relied upon, and legal sophistry used to cover this up.