Jurisdiction(s):
United Kingdom

UK Supreme Court allows clinical negligence damages for overseas commercial surrogacy, including donor eggs, subject to safeguards, departing from Briody: Whittington Hospital NHS Trust v XX

Published on: 02 April 2020

Published by a LexisNexis PI & Clinical Negligence expert

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Article summary

Whittington Hospital NHS Trust v XX [2020] UKSC 14, [2020] All ER (D) 05 (Apr) What are the practical implications of this case?

For those practising in clinical negligence, the ruling carries clear yet significant ramifications for day-to-day case assessment. In infertility cases, claimants may, in certain, defined situations, recover the expenses of commercial surrogacy by way of damages. Lawyers representing both claimants and defendants must now deepen their grasp of surrogacy law within the UK and in other jurisdictions, from a comparative perspective, to properly evaluate whether this category of loss is recoverable. This decision is a helpful starting point, with Lady Hale carefully guiding readers through the pertinent law in a complex area. For family practitioners, although the matter was a civil tort claim, Lady Hale’s judgment—among her final decisions on the bench—serves as a powerful critique of the current surrogacy framework, which she described as ‘fragmented and in some ways obscure’. It constitutes another tacit call for reform within this field. Whilst societal attitudes and the law have advanced markedly in relation to fertility treatment, family planning and ideas of ‘family’, the law of surrogacy has not been substantively amended since the Surrogacy Arrangements Act 1985 came into...

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