UK Surrogacy: Should civil courts still have a central role in a women’s reproductive choices?

Recently, the UK Supreme Court awarded damages for a commercial surrogacy arrangement which took place in California, after a woman pursued the NHS for negligence. This case not only depicts the personal struggles of infertility, but also demonstrates that surrogacy law in the UK is no longer fit for purpose.

California has one of the most liberal laws on surrogacy in the United States and it is legal to enter into a commercial surrogacy arrangement. This is typically where a single person, or a couple will enter into a paid arrangement with a surrogate to carry their baby. In California, the intended parents of the child can obtain a pre-birth court order to confirm legal parenthood of the intended parents. 

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985, the Human Fertilisation and Embryology Act 1990 and 2008. These regulations make clear that surrogacy arrangements are not legally binding and it is illegal to enter into a paid surrogacy arrangement, with the exception of any expenses incurred by the surrogate. The legislation sets out that the birth mother will always be the legal mother of the child. Legal parenthood status can only be changed by parental order issued by the court, which cannot be done for at least six weeks after birth. This has caused wide spread support for a change to UK surrogacy law and recommendations have been made to clarify this area of the law by the Law Commission who are currently embarking on a three-year review of UK surrogacy legislation.

In XX v Whittington Hospital NHS Trust UKSC 2019/0013, a delay in diagnosis of cervical cancer led to the claimant, aged 29, developing invasive malignancy which caused infertility. The London hospital treating the claimant had erroneously reported the results of her cervical smear tests and biopsies between 2008-2012. The delay in diagnosis expedited the cancer, giving rise to irreparable damage to her uterus and ovaries, causing premature menopause. The cancer was far too advanced for surgery to have taken place, which could have preserved the claimant’s fertility. Instead, she harvested and froze eight of her eggs before chemotherapy treatment, with a preference for commercial surrogacy taking place in California. 

The UK Courts initially refused the cost of commercial surrogacy to be included in a payment for damages, due to the illegality of commercial surrogacy in the UK. However, in a majority ruling of three to two, the Supreme Court found in favour of the claimant and ruled that as long as the surrogacy arrangement had a chance of success, damages for reasonable costs may be awarded. The court also added the caveat that it must be reasonable to seek an overseas surrogacy arrangement, rather than a UK based surrogacy agreement. These criteria must be met, as long as the foreign country has a well-established system that safeguards the interests of the surrogate, intended parents and resulting child. 

Lady Hale, when giving the majority decision, stated:

“It is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy…. The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here”

It is important to recognise that whilst the courts have acknowledged foreign commercial surrogacy as a means of damages in clinical negligence claims and there seems to have been a ‘victory’ of sorts in this case, the catastrophic battle that the claimant endured over a period of ten years in order to create a family is far from victorious. This highlights the problems imbedded within the current law and demonstrates that surrogacy law in the UK is outdated and no longer suitable for society. Lady Hale herself described UK surrogacy law as “fragmented and in some ways obscure”. With the laws dating back to the 1980s, it is widely accepted that there is a clear need for legal reforms to bring the law in line with social trends and medical advances. 

The uncertainty surrounding legal parenthood embellished within UK surrogacy law may attract potential parents to enter into foreign surrogacy arrangements. This would ensure formality and flexibility in and confirmation of legal parenthood; elements that are missing from the UK framework. Parental orders are one of the main areas that will be addressed in the Law Commission’s review and there is much support for a reform to allow for the intended parents to be the legal parents immediately after birth. This would provide reassurance to intended parents from the outset and allow individuals to regain autonomy over their reproductive choices.