Adele Pullarp & Chris Bryden discuss the potential for improving the surrogacy process for both parents & surrogates—& advocate its modernisation
- In Whittington Hospital NHS Trust v XX the Supreme Court held by a 3-2 majority that the cost of foreign commercial surrogacy arrangements was in principle recoverable as damages in tort, regardless of whether the claimant’s own eggs or donor eggs were to be used, and that this was not contrary to public policy.
- While commercial surrogacy arrangements are illegal in the UK, the judgment reflects society’s changing attitude to surrogacy, and the reality that payments to surrogates exceeding reasonable expenses are approved by the courts.
In Whittington Hospital NHS Trust v XX [2020] UKSC 14, [2020] All ER (D) 05 (Apr) the claimant was born in 1983. She had cervical examinations in 2008 and 2012 which were negligently wrongly reported by the hospital. The errors were discovered in 2013, at which point the claimant had cervical cancer at an advanced stage, and she was
