In April 2020, the Supreme Court, in the case of Whittington Hospital NHS Trust v XX  USKC 14, upheld the decision for a claimant to recover the reasonable costs of a commercial surrogacy arrangement abroad after a failure to diagnose cervical cancer left her unable to bear children.
This judgment marks an important change in case law, diverging from the previous case of Briody v St Helen’s & Knowsley Area Health Authority (2001) as well as other cases which have only awarded damages for the reasonable costs of IVF cycles (Biles v North East Thames Regional Health Authority (1987) and Riggs v East Dorset Health Authority (2001)).
Analysis of this judgment is particularly pertinent this week (15 - 21 June 2020) as it is Cervical Screening Awareness Week.
Last year, the clinical negligence team at Penningtons Manches Cooper posted a series of articles aimed at explaining the basics of cervical screening, linked here, and addressing the misconceptions around cervical screening (given a 20 year record fall in attendance), linked here.
This year, the team is focusing on the implications for women who are diagnosed with cervical cancer, and in particular highlighting one of the challenges many women face following treatment, which is the impact on their fertility.
The case relates to a late diagnosis of cervical cancer, which left the claimant unable to bear children.
The claimant underwent three smear tests, one in 2008 and two in 2012. Due to concerns over dyskariosis (the presence of abnormal cells) in the claimant’s initial smear test in early 2012, a repeat smear test was conducted in September 2012.
Sadly, the results of both smear tests were wrongly reported. The 2008 smear test failed to identify severe dyskariosis at the time, and the smear tests conducted in 2012 failed to identify features of an invasive carcinoma (a cancer that develops from abnormal cells). Further biopsies, conducted in late 2012, had also failed to identify the claimant’s invasive carcinoma. She was eventually diagnosed with cervical cancer in June 2013. The hospital admitted negligence in respect of the three smear tests and the two biopsies. It was recognised that had appropriate action been taken in 2008, there was a 95% chance of a complete cure and no cancer would have developed.
By the time of her diagnosis, the claimant’s cervical cancer was too advanced for her to have surgery, which would have preserved her ability to have a child.
The claimant pursued a claim against the NHS Trust and sought a financial award that would cover the reasonable costs of surrogacy using her own eggs, which she had frozen prior to commencing treatment for her cervical cancer, as well as donor eggs, which would be fertilised by her husband’s sperm.
In the UK, surrogacy arrangements are completely unenforceable; a surrogate remains the legal parent of the child unless and until a parental order is authorised by the court. However, in other jurisdictions such as in California, for example, a surrogacy agreement is binding and the parents can obtain a pre-birth order from the court. Accordingly, the claimant’s preference was to enter into a commercial surrogacy arrangement in California, as this would give her greater legal protection than a UK surrogacy arrangement.
In the first instance, the claimant was awarded the costs of using her own eggs in a surrogacy arrangement in the UK but refused the costs of using donor eggs and a commercial surrogacy arrangement abroad. The judge, Sir Robert Nelson, ruled that he was bound by the Court of Appeal’s decision in Briody, a case decided 16 years earlier.
The case of Briody similarly refused the claimant (referred to in this article as ‘B’) the costs of entering into a commercial surrogacy agreement abroad on the grounds that it was contrary to public policy. In the UK, it is illegal for anyone to exchange a child for money or any other benefit without the court’s authorisation. It would therefore have been inconsistent for a civil court to award damages that would encourage an activity, which, if undertaken in the UK, would result in a criminal offence. Further, it was held that the use of donor eggs was not restorative of B’s condition, as it would not result in her having a child of her own. B was also refused costs of a surrogacy arrangement in the UK, as the chances of a successful outcome in her case were slim. It was considered unreasonable to expect the defendant to pay the expense of such a slim chance.
The claimant in the case of Whittington v XX appealed against the refusal of her claim for commercial surrogacy and the use of donor eggs. At the same time, the hospital appealed themselves against the award for two own-egg surrogacies in the UK.
The Court of Appeal, in 2018, dismissed the hospital’s appeal and allowed the claimant’s appeal on both points, awarding her damages for the cost of a commercial surrogacy arrangement abroad using donor eggs.
Following the Court of Appeal’s decision, the hospital appealed to the Supreme Court, the highest court in England and Wales, asking the court to reconsider this judgment.
The Supreme Court therefore had three issues to address:
In considering these issues, the court kept in mind the object of damages in tort which is to put the claimant, as far as possible, back in the position they would have been had the negligence not occurred, unless it would be unreasonable or contrary to public policy to do so.
Issue 1: Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
Lady Hale explained that Briody did not rule out awarding costs for own-egg surrogacy arrangements unilaterally. What the judgment in Briody did, however, was rule that it was not reasonable for the defendant to fund surrogacy where the prospect of this succeeding was so slim.
When initially heard in the High Court, evidence as to the reasonable prospects of surrogacy was given by reproductive medicine experts. Both the expert for the Whittington Hospital NHS Trust (the defendant) and the expert for the claimant agreed that, on the balance of probabilities, the claimant would achieve one live birth from each cycle of six frozen eggs. The claimant would eventually have two live births from the dozen eggs she had frozen. The experts relied upon data from the USA and the Centre for Fertility & Genetic Health, based in the UK. This differed substantially from the Briody case, where experts reported the claimant’s chances of success to be around 1%.
Accordingly, in the case of Whittington v XX, the chances were reasonable, particularly as the claimant had already delayed her cancer treatment to freeze her eggs. As the prospects of the surrogacy succeeding were reasonable, damages could be awarded for the reasonable costs of surrogacy using the claimant’s own eggs.
Issue 2: Can damages for the funding of surrogacy arrangements using donor eggs be recovered?
The Supreme Court unanimously held that damages to fund surrogacy using donor eggs could be recovered. It was the closest the court could get to returning the claimant to the position she would have been in were it not for her late diagnosis: that is, to have a child.
Lady Hale, who was also a judge in the case of Briody, outlined her view that the suggestion that surrogacy using donor eggs was not ‘truly restorative’ of what the claimant had lost was “probably wrong then and is certainly wrong now”. Lady Hale referenced the claimant’s argument in her reasoning. The claimant argued that the damages she sought were no different from other artificial means of replacing what had been lost: for example, an artificial limb. An artificial limb is not one’s own genetic material and is not as good as a real limb, but it is the closest you could get to replacing said limb. Whilst this is not an identical example, in many ways the claimant would be supplied, through the generosity of a surrogate, with the temporary use of a womb.
Lady Hale also cited changes in the law and societal attitudes as reasons why the court’s judgment diverged from Briody. The 1985 Surrogacy Act originally banned all third parties from taking part in commercial surrogacy arrangements. In 2008, however, amendments were made to this Act, which allowed non-profit-making bodies to advertise, negotiate and compile information for reasonable payment. There are now three agencies that perform this service in the UK: COTS, Brilliant Beginnings and Surrogacy UK. In addition, parental orders were now being applied for, and granted to, civil partners, same sex married couples and un-married couples living together as well as single parent applicants. The law’s idea of what constitutes a ‘family’ has therefore dramatically developed since the case of Briody. Surrogacy is also much more widely accepted by society than it had been previously, with 59% of adults in the UK supporting it.
Issue 3: In either event, can damages to fund the cost of commercial surrogacy arrangements (in a country where this is not unlawful) be recoverable?
It is well established that UK courts will not enforce a foreign contract that would be contrary to public policy in the UK (Rousillon v Rousillon (1880) 14 Ch D 351; Israel Discount Bank of New York v Hadjipateras  1 WLR 137).
In the UK, commercial surrogacy arrangements are illegal. However, the court noted that most items claimed in respect of surrogacy costs in California could also be claimed in UK surrogacies. The main difference between the UK arrangement and the Californian arrangement was the payment to the surrogate mother herself. In the UK, parents can pay the surrogate for any ‘reasonable expenses’ she may incur in bearing the child. The suggested sum to be paid to the surrogate mother under Californian law was too high to be considered reimbursement for her ‘reasonable expenses’ by the UK courts.
However, the Law Commission is not aware of any case in which a parental order has been refused on the basis that payments have exceeded ‘reasonable expenses’. The court’s paramount consideration in these cases is the welfare of the child, which is almost always best achieved by keeping the child with the commissioning parents (the parents who are intending to raise the child following its birth). This means that, when parents have paid vast sums to a surrogate for her expenses, these sums are likely to be retrospectively authorised by the court in any event.
Further, it is not unlawful for a commissioning parent or surrogate to initiate negotiations or take part in negotiations to make a surrogacy arrangement. In this respect, nothing the claimant wanted to do was criminal, in the UK or abroad.
It was therefore concluded that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.
The court did caution, however, that it was unlikely to be reasonable to award damages for commercial surrogacy arrangements abroad unless that country has a well-established system that safeguarded the interests of all parties involved. Further, damages will only be awarded where the costs sought are reasonable.
Lord Carnwarth dissented from the majority view on this issue only. His reasoning for his dissent was that to award damages for a commercial surrogacy arrangement would be contrary to public policy. It would create inconsistencies between civil law and criminal law if a civil court were to award damages for an activity that, if conducted in the UK, would be contrary to its criminal law. He acknowledged that, despite societal changes in the attitudes towards surrogacy, there has been no change in the law that would allow damages for surrogacy arrangements and therefore the view taken in the case of Briody should be applied.
Held: The Supreme Court dismissed the hospital’s appeal on a majority of three to two and allowed the claimant to recover the reasonable costs of a commercial surrogacy arrangement abroad.
Unfortunately, cervical cancer treatments, whether surgical or clinical, can sometimes affect a woman’s fertility.
Cancer Research UK has reported that around a third of women undergoing courses of chemotherapy do not menstruate during treatment, which is known as ‘temporary infertility’. Thankfully, in cases of temporary infertility, a woman’s period is reported to return to normal in six months to a year.
Sadly, however, there are cases where cervical cancer and its treatment result in permanent infertility. The likelihood of permanent infertility increases with a woman’s age, the nature of the cancer treatment given (chemotherapy, radiotherapy etc) and the severity of the cancer. For some women, giving birth may no longer be an option and for others, the risks associated with their bearing a child may simply be too dangerous. This obviously has a devastating effect on women and their partners who wish to have children of their own.
Thanks to medical advancements, the options available to women for maintaining fertility and having a child have increased over recent decades. Options for preserving fertility include freezing eggs prior to commencing cancer treatment as well as freezing fertilised embryos. Currently, only 60 babies have been born in the UK using a woman’s own frozen eggs since 2001.
Emily Reville, a senior associate solicitor who has represented a number of women who have experienced delays in the diagnosis of cervical cancer, notes:
“Whilst it is really positive that the options for preserving fertility have improved over the years, the reality is that this option is often not possible or practical for some women. Treatment, once the cancer has been diagnosed, usually has to take place as a matter of urgency and there is often little time to discuss fertility preservation before treatment starting. It can sometimes take a minimum of two weeks to go through the preservation process and sadly some women just do not have the ability to wait this long before commencing treatment for their cancer.”
For women who need chemotherapy to treat their cervical cancer, research is increasingly focussing on removing and freezing ovarian tissue prior to chemotherapy. After treatment, the ovarian tissue is then returned to its original position, allowing the woman to bear a child. Whilst it is too early to tell if it will work well enough to be widely available, the initial results have been promising, with a few centres in the UK offering this service. Currently, around 60 babies have been born from freezing ovarian tissue worldwide.
In situations where a woman’s fertility cannot be preserved or where it may be too dangerous for a woman to carry a child, surrogacy may be the only option. The case of Whittington Hospital NHS Trust (Appellant) v XX is a step towards awarding some recompense for women who have lost the ability to have a child due to sub-standard care that has led to cervical cancer.
Senior associates Emma Beeson and Emily Reville both have specialist expertise in gynaecological and oncology claims, and note: “We have seen the devastating impact that cervical cancer has on clients we have represented. Cancer Research UK estimates that 99.8% of cervical cancers cases are preventable.
“The Cervical Cancer Screening Programme is designed to prevent women developing cervical cancer. Many of the cases we deal with centre around the misreporting of cervical smear samples as negative when they should be labelled as positive. Therefore, the women we represent are often devastated by what they believe was a preventable diagnosis before infertility is even considered as a consequence.
“For many women, by the time they are diagnosed with cervical cancer, the treatment they require is urgent and the time required for fertility preservation would delay the treatment detrimentally. Therefore, the options for fertility after treatment are limited to surrogacy using another woman’s eggs and their partner’s sperm, or adoption. The idea of the child not being genetically their own can be a factor which prevents women from going down this route.
“In the UK, surrogacy is not regulated like IVF treatment (through the Human Fertilisation & Embryology Authority (HFEA)). Only reasonable expenses are payable to the surrogate. However, it is known that in practice other expenses are paid, including screening and test expenses, surrogate agency fees, IVF treatment costs and specialist legal advice. This can add up to many tens of thousands of pounds. These costs can preclude women from using a surrogate.
“Psychological trauma may also prevent a woman from considering surrogacy as an option. When a child is born through surrogacy, the woman who gives birth to the child (the surrogate) is the legal mother. Parenthood can be transferred by parental order or adoption after the child is born. However, disagreements can occur, with the surrogate not wanting to give up parental rights. In such cases the court will make a best interests decision. Whilst the court will usually rule in favour of the commissioning parents, this can again be a deterrent for women who have already been through the trauma of a cervical cancer diagnosis.
“Whilst Whittington Hospital NHS Trust (Appellant) v XX is most certainly welcomed to assist women who wish to claim the costs of using a surrogate abroad in certain circumstances, there will continue to be many women who feel unable to pursue surrogacy as an option for infertility following cervical cancer given the challenges noted above.
“From our perspective in acting for women who have experienced delays in diagnosis and had their smears misinterpreted, there is no doubt that the key is in ensuring that women are not placed in this position in the first place by improving the processes used for cervical smear reporting.”
This article has been co-written with Kitty Brockbank, a trainee solicitor in the clinical negligence team.
 S54(8), s54A(7)) – Human fertilisation and embryo act 2008
 2017 judgment – para 49
 Para 37 judgment – yougov poll.