COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mrs Justice Ebsworth)
Strand, London, WC2A 2LL
Friday 29th June 2001
B e f o r e :
LORD JUSTICE JUDGE
LADY JUSTICE HALE
| MARGARET PATRICIA BRIODY
|- and -
|ST HELEN'S & KNOWSLEY
AREA HEALTH AUTHORITY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Freeth Cartwright for the Appellant)
Ms Sally Smith QC & Charles Feeny Esq
(instructed by Hill Dickinson & Co for the Respondent)
Crown Copyright ©
LADY JUSTICE HALE:
"On any view of our law the Claimant seeks an award of damages to acquire a child by methods which do not comply with that law; that seems to me to be wrong .... It is one thing for a court retrospectively to sanction breaches of statute in the paramount interests of an existing child, it is quite another to award damages to enable such an unenforceable and unlawful contract to be entered into."
She also rejected the "donor egg" proposal because it did not confront this latter problem. Having reached this conclusion on the proposals presented to her, it is scarcely surprising that she did not consider whether there were other reasons to reject the "donor egg" option.
"It is possible to foresee a case in which a young married woman has been rendered incapable of bearing a child brings a case whilst still young and within the ambit of our law. That is not this case and I deliberately confine my decision to this case of proposed commercial surrogacy."
In this court, however, the defendant invites us to remove that limitation and hold that damages for surrogacy are never recoverable.
English law on surrogacy
a) Surrogacy arrangements are not unlawful, nor is the payment of money to a surrogate mother in return for her agreeing to carry and hand over the child.
b) The activities of commercial surrogacy agencies are unlawful. It is an offence for any person to take part in negotiating surrogacy arrangements on a commercial basis, ie for payment to himself or another (apart from the surrogate mother); for a body of persons negotiating surrogacy arrangements to receive payment from either the proposed surrogate mother or the commissioning parents; or for a person to take part in the management or control of a body of persons which negotiates or facilitates surrogacy arrangements: Surrogacy Arrangements Act 1985, s 2.
c) It is also a crime to advertise either for surrogate mothers or a willingness to enter into or make surrogacy arrangements: Surrogacy Arrangements Act 1985, s 3.
d) The surrogate mother is always the child's legal mother, irrespective of whose eggs were used: Human Fertilisation and Embryology Act 1990, s 27(1).
e) If the commissioning father supplied the sperm, he will be the child's legal father, unless section 28 of the Human Fertilisation and Embryology Act 1990 applies so as to make someone else the father. It should be possible, by treating him and the surrogate together, to avoid the exclusion from fatherhood of ordinary sperm donors: see 1990 Act, s 28(6)(a) and Sched 3, para 5).
f) If the child is born by IVF (in vitro fertilisation), GIFT (gamete intra-fallopian transfer) or artificial (but not natural) insemination to a married surrogate mother, her husband will be the legal father unless it is shown that he did not consent to the treatment: Human Fertilisation and Embryology Act 1990, s 28(2). If the treatment was given "... in the course of treatment services provided for her and a man together" by a licensed clinic, her partner will be the father: 1990 Act, s 28(3). But this can easily be avoided by her partner taking no part in the treatment.
g) No surrogacy arrangement is enforceable by or against any of the persons making it: Surrogacy Arrangements Act 1985, s 1A (see also Children Act 1989, s 2(9), reflecting the common law).
h) The future of any child born, if disputed, will always be governed by the paramount consideration of the welfare of the child: Children Act 1989, s 1(1). It is unlikely, although not impossible, that a court would decide that the child should go to the commissioning parents rather than stay with a mother who had changed her mind: see A v C  FLR 445; Re P (Minors)(Wardship: Surrogacy)  2 FLR 421. If the mother does not want the child and the commissioning parents are able to offer a suitable home, the court is likely to allow them to do so: see Re C (A Minor)(Wardship: Surrogacy)  FLR 846.
i) If the child is handed over in accordance with the arrangement, the court may be prepared retrospectively to authorise, under s 57(3) of the Adoption Act 1976, any payment made to the surrogate mother and grant an adoption order which would otherwise be prohibited by s.24(2) of the 1976 Act: see Re Adoption Application (Payment for Adoption)  Fam 81.
j) There is now a special procedure, similar to adoption, whereby the commissioning parents may become the child's legal parents: they must be married to one another, the child must be born as result of IVF, GIFT or artificial (again not natural) insemination using the gametes of one or both of them, the child must be living with them, the surrogate mother (and any father of the child who is not the commissioning father) must agree, and no payment must have been made unless authorised by the court: Human Fertilisation and Embryology Act 1930, s 30; see Re Q (Parental Order)  1 FLR 369.
k) If a surrogacy arrangement involves treatment in a clinic licensed by the Human Fertilisation and Embryology Authority (which will be the case in this country unless natural or private artificial insemination is used), this must not be provided
"unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth": Human Fertilisation and Embryology Act 1990, s 13(5).
l) Clinics must observe the Code of Practice promulgated by the Human Fertilisation and Embryology Authority (see 4th edition, 1998). This provides that
"The application of assisted conception techniques to initiate a surrogate pregnancy should only be considered where it is physically impossible or highly undesirable for medical reasons for the commissioning mother to carry the child" (para 3.20).
It also gives guidance on the factors to be considered when taking account of the child's welfare (para 3.17); and points out that in a surrogacy arrangement either the surrogate (and her husband or partner if any) or the commissioning parents may become the child's parents and so both should be assessed, along with any risk of disruption should there be a dispute, and the effect on any other children in either the surrogate's or the commissioning parents" family (para 3.19.b).
"... surrogacy is an acceptable option of last resort in cases where it is impossible or highly undesirable for medical reasons for the intended mother to carry a child herself. In all cases the interests of the potential child must be paramount and the risks to the surrogate mother must be kept to a minimum."
The principles of the law of damages
"I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."
Part of that principle is that the claimant is not entitled to ask the defendant to pay to make him better off than he would have been without the tort. He also has to give credit for any benefits received: hence the House of Lords' decision in McFarlane v Tayside Health Board  2 AC 59 that the benefits of having a healthy, if initially unwanted, child must be taken to cancel out the costs of his upbringing.
"In an action for damages for personal injuries ... there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage if the facilities available under the National Health Service Act 1977 ..."
No doubt this provision was passed to resolve an argument which had developed after the passing of the first National Health Service Act in 1946.
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
Should we admit the fresh evidence?
LORD JUSTICE JUDGE:
"... that she should be entitled to the cost of attempting to retrieve her own eggs from her own ovaries to be fertilised with her partner's sperm and placed in a surrogate mother pursuant to a contract she has entered into in California, governed by Californian lawů.. Her medical evidence from Professor Crafts is that the claimant has a chance, which she estimates at 1%, of a child being conceived with the use of her recovered eggs fertilised by the sperm of her partner, using the ICSI technique and inserted into the womb of the surrogate mother. ...."
"... was telling me what she believes to be the truth, but that she displayed at times a capacity both for minimisation and exaggeration and in particular that she has extended the period of symptoms", (that is of depression and mood disorder).
"(2) Unless it orders otherwise, the appeal court will not receive oral evidence; or
evidence which was not before the lower court."
"In the exercise of the general power to receive fresh evidence under this rule the court must seek to give effect to the over-riding objective enabling the court to deal with the cases justly .... The proper application of the over-riding objective justifies the court in setting stringent limits to the re-opening of issues after the judge has delivered final judgment in an action ů. The power is to be exercised 'very cautiously and sparingly' in accordance with the over-riding objective. Litigants are not to be allowed 'unlimited bites of the cherry'." (see, also, Stuart v Engel,  1 WLR 2268, from which these quotations were derived.)
LORD JUSTICE HENRY: