The UK courts remain unmoved on commercial surrogacy

A recent case is noteworthy not only for clinical negligence lawyers but also those interested in surrogacy and the wider public policy debate in the UK. Much of that debate has focused on the lack of regulation provided by the current UK legal framework and the need for the law to be modernised so that it can properly afford protection to those involved in surrogacy arrangements - a view I share. 

This case was heard in June 2017 in the High Court, London, the judgment followed in September. The claimant was a woman in her late 20s, who, as a consequence of her hospital's admitted negligence in failing to detect signs of cancer from smear tests and biopsies, developed invasive cervical cancer. She required chemotherapy that, among other medical complications, led to infertility. 

As the hospital had admitted that they were responsible for causing the complications and infertility, the trial was limited to establishing how much the claimant should be awarded in damages as a result of the hospital's negligence. 

The claimant and her partner wished to enter into a commercial surrogacy arrangement in California (one of the US states where commercial surrogacy is lawful). They expressed a preference for doing it there over the UK or elsewhere, citing what they saw as advantages of the regulated and commercial model in California.

However, under the Surrogacy Arrangements Act 1985, commercial surrogacy is illegal in the UK and it is a criminal offence to advertise either for a surrogate or to be a surrogate. Surrogacy in the UK is permitted only if it is altruistic, and only reasonable expenses may be paid to the surrogate.

Although the claimant expressed misgivings about undertaking surrogacy in the UK, she and her partner said they were determined to have children and therefore prepared to use the UK system if their claim did not succeed.

But an earlier case had crucial implications: in Briody the High Court considered whether damages could be recovered to cover the costs of surrogacy in California. In this case, the claimant wished to have a genetically-related child, however expert evidence considered that there was only a one percent chance of a live birth using her own eggs. On appeal to the Court of Appeal, the High Court dismissed her claim, and on appeal she invited the Court of Appeal to allow damages for a surrogacy arrangement in California using donor eggs. 

The claim was dismissed by the Court of Appeal because they felt that it would be inappropriate to award damages to pay for what would be an unlawful contractual arrangement in the UK. The significance of using the mother's own eggs was left open.

In the present case there was legal argument as to whether use of the claimant's eggs (which had been harvested successfully prior to the chemotherapy) in a commercial surrogacy arrangement in California would be capable of attracting an award in damages, having regard to the changing attitudes towards commercial surrogacy and the number of reported cases in the Family Court where the payments in international commercial surrogacy arrangements had been authorised by High Court Judges.

Sir Robert Nelson, the judge hearing the claim, rejected this argument, observing that he was bound by the earlier decision in Briody, that the court could not award damages to enable the claimant to undertake a commercial surrogacy arrangement in California.

The judge was however minded to award damages in respect of the claimant and her partner undergoing a surrogacy arrangement in the UK using her own eggs. The judge observed he was bound by the Briody decision and that a claim for damages for a surrogacy arrangement using donor eggs would not succeed because Briody considered that it would not 'restore' the loss of a claimant having their own child, whereas in the present case the claimant's own frozen eggs were available.

Having allowed the claim in respect of the surrogacy in the UK, the court awarded the claimant £37,000 (including VAT) for each of two surrogacy arrangements in the UK. The court arrived at this amount by taking into account the reasonable expenses of the surrogate that the claimant would have to pay for the two separate surrogacy arrangements and for legal advice. 

This case obviously brings into sharp relief some of the profound reasons why individuals may wish to use surrogacy as a route to parenthood. Surrogacy is regularly in the news or often in glossy magazines concerning well known individuals; however this recent case highlights some of the difficult medical circumstances which lead to surrogacy. 

Whilst there has been growing acceptance that intended parents in the UK may enter into lawful commercial surrogacy arrangements in other countries which are then authorised by the English Family Court, the paramount concern of the court, when deciding whether to make a parental order is the welfare of the child. This case however illustrates the ambivalence of a court actively endorsing commercial surrogacy. The decision of the court is not therefore that surprising. The taboo that existed in 2002 remains 15 years later. The earlier decision of Briody made it clear that it would not be permissible to allow a claimant to pursue a contractual arrangement that would be unlawful in this country. 

The case  highlights that the availability of surrogacy in the UK is something which is not discouraged, despite the reservations of the claimant and her partner in entering into such an arrangement. The question of what amounts to 'reasonable expenses' for a surrogate in the is touched upon, the court having received expert evidence that the average payment is £10,800. Recent Family Court decisions have considered this question, but plainly there can never be a set figure because the term 'reasonable expenses' is a broad one, so taking an average figure seems the most appropriate approach. 

The distinction drawn between whether damages would be awarded for a surrogacy arrangement if it were donor eggs versus the claimant's own eggs also offers an interesting perspective on how family life is viewed in the context of trying to restore a claimant to a position that she was in prior to the hospital's negligence. 

Overall this case reinforces the reticence of the courts towards actively endorsing what is seen to be a commercial surrogacy arrangement. In some ways it is not a surprising decision – commercial surrogacy remains a taboo topic in the UK, so the decision doesn't really change matters since the decision in Briody. However it is somewhat difficult to reconcile it with the reality of the increasing number of intended parents going abroad and entering commercial surrogacy arrangements: why should the claimant in this case be treated any differently? It seems that Parliament needs to reform the law before the court would be in a position to endorse commercial surrogacy.