XX (Respondent) v Whittington Hospital NHS Trust (Appellant)
Case ID: UKSC 2019/0013
Whether the Respondent can recover damages for expenses of surrogacy arrangements which she intended to make in the UK or elsewhere. Whether it is correct to differentiate between "own egg" and "donor egg" surrogacies in awarding damages for such surrogacy expenses.
As a consequence of the admitted negligence of Whittington Hospital NHS Trust ("Appellant" or "Hospital") in failing to detect signs of cancer, Ms X ("Respondent") developed invasive cancer of the cervix for which she required chemoradiotherapy treatment that led to infertility. The Respondent and her partner have decided to have their own biological children by surrogacy. The experts for the parties agree that on the balance of probabilities the Respondent will achieve two live births from her 12 cryopreserved eggs. If her cryopreserved eggs do not result in 3-4 children, she intends to use donor eggs. Their first choice of surrogacy is California, primarily because surrogacy is lawful and binding there. Ms X’s claim in respect of surrogacy is for the expense of four pregnancies either in California or the UK using her own eggs and, if necessary, donor eggs. In the High Court, Sir Robert Nelson concluded that the claim for California surrogacy expenses must fail because he was bound by Briody v St Helens and Knowsley Area Health Authority  QB 856 on this issue. He viewed the claim relating to the UK surrogacy to be different as it is not illegal nor contrary to public policy to use an agency to find a surrogate mother. However, he distinguished between the use of a mother’s own eggs, which is capable of attracting an award, and the use of donor eggs, which is not. He therefore limited the claim to the cost of two surrogacies in the UK, using Ms X’s own eggs. He allowed an additional £15,000 in the award for pain, suffering and loss of amenity to take account of the fact that he did not award damages in respect of the surrogacy in California. Ms X appealed on the basis that the High Court was wrong in law (1) to refuse her recovery of damages for expenses of surrogacy arrangements which she intended to make, either in California or, alternatively, in the UK, and (2) to differentiate between "own egg" and "donor egg" surrogacies. The Hospital cross-appealed. The Court of Appeal allowed the appeal and dismissed the cross-appeal. The Hospital now appeals to the Supreme Court.
Whittington Hospital NHS Trust
Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Carnwath
Hearing start date
16 Dec 2019
Hearing finish date
17 Dec 2019