Whittington Hospital NHS Trust v XX: SC 1 Apr 2020

A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could damages to fund arrangements using donor eggs be recovered? Third, in either event, could damages to fund the cost of commercial surrogacy arrangements in a country where this was not unlawful be recovered?
Held: The Court answered; yes, yes, and yes.
Under UK law, surrogacy arrangements are completely unenforceable; the surrogate mother is always the child’s legal parent unless and until a court makes a ‘parental order’ transferring legal parenthood to the commissioning parents; and the making of surrogacy arrangements on a commercial basis is banned. However, offences can only be committed in the UK, and nothing stops agencies based abroad from making surrogacy arrangements on a commercial basis abroad.
The chances of an own egg surrogacy being successful were reasonable, and she had delayed cancer treatment for treatment, and its reasonable costs were recoverable. Things had changed since Briody.
On the third question, Lord Carnwath dissenting, though a UK court will not enforce a contract in breach of public policy most items under the US contract would be recoverable here.


Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Carnwath


[2020] UKSC 14, [2020] WLR(D) 207, [2020] 4 All ER 93, [2020] PIQR P12, [2021] AC 275, (2020) 174 BMLR 1, [2020] Med LR 209, [2020] 2 WLR 972, UKSC 2019/0013


Bailii, Bailii Summary, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2019 Dec 16 am Video, SC 2019 Dec 16 pm Video, SC 2019 Dec 17 am video


Surrogacy Arrangements Act 1985 2(1)


England and Wales


CitedXX v Whittington Hospital NHS Trust QBD 18-Sep-2017
The defendant Trust admitted a failure to diagnose cancer in the claimant. As a result of the necessary treatment, she became infertile. An earlier treatment might have avoided this. She now sought damages, inter alia for losses associated with the . .
Appeal fromXX v Whittington Hospital NHS Trust CA 19-Dec-2018
The defendant had failed to diagnose cancer in the claimant. The court was now asked whether the judge was correct in law to refuse (or limit) Ms X’s recovery of damages for expenses of surrogacy arrangements which she intended to make, either in . .
Refusal of LeaveXX v Whittington Hospital NHS Trust (Leave) CA 19-Dec-2018
Refusal of permission to appeal to Supreme Court . .
Not CurrentBriody v St Helens and Knowlsey Area Health Authority CA 29-Jun-2001
The appellant had claimed and been awarded damages for a negligently performed caesarean operation. She had been refused damages for the cost of later going to California to go through a commercial surrogacy procedure.
Held: Such claims were . .
CitedZ (A Child) (No 2) FD 20-May-2016
Application for parental order by one person.
Otherwise In re Z (Surrogate Father: Parental Order) (No 2) . .
CitedLivingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
CitedIn re Q (Parental Order) 1996
In a foreign surrogacy agreement, payments other than reasonable expenses could be authorised retrospectively, after they had been made . .
CitedMacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedAB (Surrogacy: Consent), Re FC 25-Oct-2016
Both the surrogate and her husband refused to agree to the order even though they had handed over the child to the commissioning parents. All the court could do was make a child arrangements order which gave them parental responsibility but left the . .
CitedIn re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
CitedA and Another v C and Another FC 11-Jul-2016
Reasons for making parental orders – children aged 12 and 13 . .
CitedIn re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
CitedIn re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
CitedRousillon v Rousillon ChD 23-Feb-1880
Fry J considered Copin v Adamson as authority for the view that the foreign court would have jurisdiction where the judgment debtor ‘has contracted to submit himself to the forum in which the judgment was obtained’. . .
CitedBritish Columbia v Zastowny 8-Feb-2008
Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to . .
CitedRees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
CitedCattanach v Melchior 16-Jul-2003
Kirby J suggested: ‘Concern to protect the viability of the National Health Service at a time of multiple demands upon it might indeed help to explain the invocation in the House of Lords in McFarlane of the notion of ‘distributive justice’.’
CitedIsrael Discount Bank of New York v Hadjipateras CA 1983
An application was made to enforce a judgment in England. The respondent alleged that he had signed a guarantee under the undue influence of his father.
Held: The Court reversed the decision of the first instance judge. The substance of the . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 11 October 2022; Ref: scu.649485