ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
Sir Robert Nelson
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE KING
LADY JUSTICE NICOLA DAVIES
|- and -
|WHITTINGTON HOSPITAL NHS TRUST
Lord Faulks QC and Charles Feeny (instructed by Bevan Brittan LLP) for the Respondent
Hearing dates: 7-8 November 2018
Crown Copyright ©
Lord Justice McCombe:
(B) Background Facts
(C) Summary of the surrogacy position
(D) The Claim for surrogacy expenses and the judge's decision
"I consider that it is arguable that the cost of commercial surrogacy in California and the cost of surrogacy using donor eggs is recoverable given the changes in social attitudes since Briody [see below] was decided and the change in statute law re the care of the child in surrogacy cases."
"English law on surrogacy
10. English law on surrogacy is quite clear.
(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, i e 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, section 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 1984, section 3.
(d) The surrogate mother is always the child's legal mother, irrespective of whose eggs were used: Human Fertilisation and Embryology Act 1990, section 27 (I).
(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 the 1990 Act, section 28(6)(a) and Schedule 3, paragraph 5.
(f) If the child is born by IVF (in vitro fertilisation), GIFT (gamete intrafallopian 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, section 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, section 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, section 1A, as inserted by section 36 of the 1990 Act (see also the Children Act 1989, section 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, section 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  1 FLR 445 and In 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 In 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 section 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 section 24(2) of the 1976 Act: see In 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 1990, section 30; see In 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, section 13(5).
(l) Clinics must observe the Code of Practice, 4th ed (1998), promulgated by the Human Fertilisation and Embryology Authority. This provides, in para 3.20:
"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"."
"11. These provisions do not indicate that surrogacy as such is contrary to public policy. They tend to indicate that the issue is a difficult one, upon which opinions are divided, so that it would be wise to tread with caution. This is borne out in the official publications which have considered the matter. If there is a trend, it is towards acceptance and regulation as a last resort rather than towards prohibition."
She set out the English opinions (paragraphs 12-14) and then contrasted the Californian arrangement with the lawful English arrangements put forward in the fresh evidence. She said this (at paragraphs 15 and 16):
"15. Elsewhere in the world, opinion is even more divided. There are some jurisdictions where surrogacy is banned altogether and others where the surrogate mother is not even regarded as the mother of the child. It would appear (although I do not know whether there was any evidence on this before the judge) that in California commercial agencies are permitted and surrogacy agreements may be binding. If so, I have no difficulty in agreeing with the judge that the proposals put to her were contrary to the public policy of this country, clearly established in legislation, and that it would quite unreasonable to expect a defendant to fund it.
16. On the other hand, I find it impossible to say that the proposals which the claimant now wishes to pursue are contrary to public policy in that sense. She fulfils the criteria for permissible surrogacy laid down both by the Human Fertilisation and Embryology Authority and the BMA: she has no other way of having a baby because she has no womb. She has found a surrogate mother through perfectly lawful means with who she proposes to make a lawful, although unenforceable, arrangement. She is being treated through a clinic which is licensed to provide these treatments by the Human Fertilisation and Embryology Authority, which has arranged the counselling required under the HFEA Code of Practice, and has presumably made its assessment of the welfare of the child (and of the surrogate mother's children) in accordance with that code. That is not, however, the end of the matter."
"The principles of the law of damages
17. In novel cases it is often helpful to return to first principles. It is trite law that the purpose of the award of damages in tort is, so far as possible, to put the claimant in the position in which she would have been had the tort not taken place. This was clearly stated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39:
"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."
Hale LJ then said:
"Part of that principle is that the claimant is not entitled to ask the defendant to make him better off than he would have been without the tort."
(In the present case, both parties rely upon the passage from Lord Blackburn's judgment in different ways.) At paragraph 18 of her judgment, Hale LJ then said:
"18. Where someone has suffered personal injuries of a lasting nature, they cannot be put back in the position in which they would have been had the injury not happened. They are compensated by an award for the pain and suffering they have endured and for the continuing loss of amenity in their lives. In the case of a woman who has always wanted children, to be deprived forever of the chance of having and bringing up those children is a very serious loss of amenity quite separate from the pain and suffering caused by the injury. The level of awards for young childless women should reflect an understanding of how grave a detriment this is."
"25. …This proposal is not in any sense restorative of Ms Briody's position before she was so grievously injured. It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers. It is significant that Ms Briody and her first husband tried to make good their loss by adoption, but by then the supply of babies for adoption was beginning to dry up and they turned to fostering instead. These days, some childless couples with the resources to do so become parents by inter-country adoption. The expenses of travelling to the foreign country, staying there, dealing with the various intermediaries and formalities, can be very heavy. But, so far as I am aware, no one who has been wrongfully deprived of the possibility of having a child of their own has sought to claim these. I cannot think that any court would consider it reasonable to expect a defendant to pay them."
"27. So far, the European jurisprudence has linked these two rights: the right to found a family is a family founded by marriage; the right to marry is limited to traditional marriage between persons of opposite biological sex: see Rees v United Kingdom (1986) 9 EHRR 56. More importantly, these are freedoms which should not be arbitrarily restricted, for example by preventing prisoners from marrying; this may well preclude placing arbitrary or disproportionate restrictions upon access to the reproductive services which are generally available. But that is quite different from having a right to be supplied with a child (or a spouse): see the recent decision of this court in R (Mellor) v Secretary of State for the Home Department  QB 13.
28. I conclude that expenditure on surrogacy in this case is not "reasonable" and the defendant should not be required to fund it. I am fortified in that view by the opinion of Professor Craft. Although he thought that the claimant should be given the chance of achieving her desires he did not think that she was "sensible" to do so. "Sensible" is very close to "reasonable". I repeat, neither the child nor the pregnancy would be hers; without either, the situation is no different from adoption."
"30. To be reasonable, there would have to be a reasonable chance of a child being achieved as a result. This would be a matter of evidence. But I would not exclude surrogacy just because it was surrogacy: I have already explained why I do not consider that an arrangement which conforms to English law is contrary to public policy. The difference between supplying eggs and supplying a womb is that the surrogate who supplies the womb may change her mind; but the evidence given to the Brazier team was that this is very rare. It would depend upon the evidence in the individual case, and that chance would have to be added to the other uncertainties involved in all such treatment. But, if those chances were good enough, I would not think this a good reason to refuse an award. The question is whether, to be reasonable, reparation has to produce, not only a child to rear, but also a child who is the product both of one's own genes and of one's own womb."
Neither "intermediate" solution is open to Ms X here.
"32. My tentative view is that each of these cases is a step too far. To choose between them would be to elevate either genetic parentage or the process of carrying and giving birth above the other in the scale of loss which it is reasonable to try to make good with alternatives. But I recognise the force of the contrary argument that both are equally serious and that, given the right evidence of the reasonableness of the procedure and the prospects of success, each should be capable of attracting an award."
"49. It is not illegal nor contrary to public policy to use an agency to find and use a surrogate mother provided the requirements of the Act are fulfilled. As Lady Justice Hale said in Briody when dealing with this situation obiter, given the right evidence of the reasonableness of the procedure and the prospects of success such a case should be capable of attracting an award. (para 32) It is also correct that she said that her tentative view was that such a claim was a step too far. If however, as here, the prospects of success of a live child being born are reasonable if not good, and the Claimant has delayed her cancer treatment to ensure her eggs were harvested, I find it difficult to see why, both on general principle, and based upon Lady Justice Hale's own view, such a case should not be "capable of attracting an award", and why the claim relating to the UK should not succeed.
50. The use of a mother's own eggs is however to be contrasted with a claim based on the use of donor eggs. I am bound by the decision in Briody to reject such a claim. (para 25) The loss that the injured mother sustains is the inability to have her child, not a child. The use of donor eggs is not therefore restorative of her loss. Even if that part of the decision were technically obiter I would adopt the reasoning of the Court of Appeal and reject any claim in respect of donor eggs. If the loss was to be properly regarded as the loss of a child it would not be reasonable or proportionate to require a defendant to pay for the cost of donor egg surrogacy."
(F) The Appeal and my Conclusions
"(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) the conditions in subsections (2) to (8) are satisfied."
"(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—
(a) the making of the order,
(b) any agreement required by subsection (6),
(c) the handing over of the child to the applicants, or
(d) the making of arrangements with a view to the making of the order, unless authorised by the court."
"17. As has been established in the cases to date, when the court is considering whether to authorise payments such as these, the court needs to look at a number of factors: was the sum paid disproportionate to reasonable expenses? Were the applicants acting in good faith and without moral taint? Were the applicants' party to any attempt to defraud the authorities?
18. I am entirely satisfied in this case that the sums which were paid were not disproportionate to the reasonable expenses. They did not overbear the will of the surrogate and were not of such a level to be an affront to public policy. They were payments permitted in the jurisdiction in which they were made, and are not too dissimilar to payments made in similar cases. The profile information about the first respondent demonstrated she was altruistically motivated to become a surrogate mother and to assist the applicants [to] have a much wanted child. She had been a surrogate before and had the benefit of detailed prior discussions and legal advice before entering into the agreement with the applicants and had a clear understanding of the process and issues involved. She formed a positive relationship with the applicants and she wholeheartedly supports the applicants' wish to be treated as C's parents.
19. In relation to the applicants acting in good faith and their involvement with the authorities, they have co-operated entirely with any requirements which have been made of them in either the United States or in this jurisdiction, both in relation to the steps which they have taken in the United States, for example, seeking the pre-birth order, the advice which they have taken in the United States and, also, promptly issuing their application here and furnishing this court with all the information which it requires to enable it to consider the application. There has been no 'moral taint' in the applicants' dealings with the respondents or with the authorities. The applicants have at all times sought to comply fully with the requirements of Californian and English Law. It is also clear from the applicants' statements that the surrogacy arrangement was entered into with care and thought and in respect of a much-wanted child, and does not represent the simple buying of a child overseas.
20. I am satisfied, in the circumstances of this case, that the payments should be authorised by the court in accordance with s54(8)."
"31. …Thorpe LJ commented that the authorities demonstrate the evolution of judicial acceptance of the diversity of the family in modern society and made reference to authorities both in the family law field and outside it. We have come a long way from the days when a mother who began a lesbian relationship might well have found that it meant she was not permitted to have care of her children.
32. The speed with which the law responds to social change is not uniform. Sometimes change is well advanced and accepted in society before there is legal recognition of it. At other times, Parliament or the courts react to the prompt of a minority and are in the vanguard of change. Sometimes legislation is actually passed to provoke change – anti-discrimination provisions are perhaps an obvious example of this. It cannot be assumed, therefore, that the majority of the population necessarily supports the provisions of the Civil Partnership Act or the provisions of the Adoption and Children Act which will permit adoption by a same sex couple."
"…I have no difficulty in agreeing with the judge that the proposals put to her were contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it".
"Public policy is necessarily variable. It may be variable not only from one century to another, not only from one generation to another, but even in the same generation … This variability of public policy is a stone in the edifice of the doctrine, and not a missile to be flung at it. Public policy would be almost useless without it."
"Since public policy reflects the mores and fundamental assumptions of the community, the content of the rules should vary from country to country and from era to era. There is high authority for the view that in matters of public policy the courts should adopt a broader approach than they usually do to the use of precedents.
Such flexibility may manifest itself in two ways: by the closing down of existing heads of public policy and by the opening of new heads. There is no doubt that an existing head of public policy may be declared redundant. So in the nineteenth century it was stated that Christianity was part of the law of England and that accordingly a contract to hire a hall for a meeting to promote atheism was contrary to public policy but 50 years later this view was decisively rejected."
(Footnotes from the original below)
"Obviously a doctrine of public policy is somewhat open-textured and flexible, and this flexibility has been the cause of judicial censure of the doctrine. On occasions it has been seen by the courts as being vague and unsatisfactory, "a treacherous ground for legal decision", "a very unstable and dangerous foundation on which to build until made safe by decision". It is in the context of this doctrine that the unruly horse metaphor rode into the litany of the English lawyer. However, the doctrine has had its defenders. For Winfield, the "variability of public policy is a stone in the edifice of the doctrine, and not a missile to be flung at it". Lord Denning M.R. also viewed the doctrine with favour: "[w]ith a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles."
(The footnotes in the textbook again are repeated here.)
"120. The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate."
The "lead-in" to that paragraph can be seen earlier in paragraphs 99-101 as follows:
"99. Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand.
100. Lord Goff observed in the Spycatcher case, Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 286, that the "statement that a man shall not be allowed to profit from his own wrong is in very general terms, and does not of itself provide any sure guidance to the solution of a problem in any particular case". In Hall v Hebert  2 SCR 159 McLachlin J favoured giving a narrow meaning to profit but, more fundamentally, she expressed the view, at pp 175–176, that, as a rationale, the statement that a plaintiff will not be allowed to profit from his or her own wrongdoing does not fully explain why particular claims have been rejected, and that it may have the undesirable effect of tempting judges to focus on whether the plaintiff is "getting something" out of the wrongdoing, rather than on the question whether allowing recovery for something which was illegal would produce inconsistency and disharmony in the law, and so cause damage to the integrity of the legal system.
101. That is a valuable insight, with which I agree. I agree also with Professor Burrows' observation that this expression leaves open what is meant by inconsistency (or disharmony) in a particular case, but I do not see this as a weakness. It is not a matter which can be determined mechanistically. So how is the court to determine the matter if not by some mechanistic process? In answer to that question I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law."
"…the purpose of the award, if made would be to enable the claimant to acquire a child by methods which are outlawed in domestic law".
Even then, Mrs Briody personally was not proposing to do anything that would have put her in breach of our criminal law.
"107. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Professor Burrows' list is helpful but I would not attempt to lay down a prescriptive or definitive list because of the infinite possible variety of cases. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties' respective culpability."
It is for the last sentence of the paragraph that I quote it – the reference to "Professor Burrows' list" is, it will be recalled, to the relevant section of his Restatement of the English Law of Contract (2016). Looking at that last sentence, what (one may ask) is the "seriousness" of Ms X's proposed conduct? There is no wrong at all, let alone "serious" wrong. Of course, it would be intentional, but there is nothing wrong in doing a lawful act intentionally. If one moves to disparity in the parties' respective culpability, there is no contest. I accept, of course, that Lord Toulson was dealing with a contract with two wrongdoers as opposed to a tort and one wrongdoer.
"108. The integrity and harmony of the law permit—and I would say require—such flexibility. Part of the harmony of the law is its division of responsibility between the criminal and civil courts and tribunals. Punishment for wrongdoing is the responsibility of the criminal courts and, in some instances, statutory regulators. It should also be noted that under the Proceeds of Crime Act 2002 the state has wide powers to confiscate proceeds of crime, whether on a conviction or without a conviction. Punishment is not generally the function of the civil courts, which are concerned with determining private rights and obligations. The broad principle is not in doubt that the public interest requires that the civil courts should not undermine the effectiveness of the criminal law; but nor should they impose what would amount in substance to an additional penalty disproportionate to the nature and seriousness of any wrongdoing."
Again, there is no integrity of criminal law and civil law that is endangered if Ms X's claim is allowed. To the contrary she proposes nothing wrong and is deserving of no penalty at all, let alone an additional one. To the same effect is paragraph 109 where this was said:
"109. The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted."
It is unnecessary to repeat my comment on Lord Toulson's paragraph 108 above.
"Money lent in a foreign country for the purpose of being used by the borrower for gaming, the game not being illegal by the law of that country, may be recovered in the English courts.
Quarrier v Colston (1842) 1 Ph. 147 followed…"
The case examined a number of differences in the earlier cases between the enforceability of loans made for the purpose of gambling and securities given to cover gambling debts.
"Mr Atkin [for the defendant] has not succeeded in persuading me that according to the law of England as administered in the English Courts, it is impossible for those who have lent money for gaming purposes in countries where gaming is lawful to recover the amount of the loan. It is sufficient for me to say that I am bound by Quarrier v Colston to hold that that point has not been made out."
Buckley LJ said (at p. 227-8):
"I cannot see that it is contrary to public policy for the English courts to recognise a debt contracted for the purpose of wagering abroad in a place where such wagering was legal… [A] betting or gaming contract in a country where betting or gaming is recognized by the law cannot be said to be contrary to essential principles of morality or justice."
Kennedy LJ said (at p.231):
"There is no doubt generally by the law of England, when a contract is made abroad in a civilised country where it would be held to be a lawful contract, that contract is held to be governed by the lex loci contractus and is enforceable in personam in the Courts of this country."
"…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."
"Ms X seeks compensation for the two donor egg surrogacies she will probably require to complete her family. She (reasonably) wishes to become the mother to those two children and complete her intended family with her partner. Any observations in Briody on donor egg surrogacies, were obiter…"
(Skeleton argument paragraph 11.1).
"11.5 Public policy has changed since Briody in 2001. It is no longer appropriate to discriminate in an award of damages between a child born from own egg surrogacy and one born from donor egg surrogacy. The characterisation of the donor egg claim as being impermissibly different from an own egg surrogacy claim does not stand up to analysis in our modern society. Throughout the country there are thousands of children born into families who would be appalled at the thought that simply because they have only a genetic connection to one of their parents, they were somehow of lesser value within the family. Legislation points only one way: that donor egg surrogacies should be seen now to have equal status. The familial orthodoxy, which appears to have underpinned the observations on donor egg surrogacy in Briody, has been consigned to history. Society does not now place a lesser value on children born with only one of their parents' genes. Same sex relationships can achieve no other result and yet no current public policy would seek to characterise the child as not the child of both of the parents – even though one does not have any biological connection. This is shown by the passage of the Civil Partnerships Act 2004 and the Marriage (Same Sex Couples) Act 2013."
(G) Proposed Result
Lady Justice King:
Lady Justice Nicola Davies:
"(F) Reproductive System: Female
The level of awards in this area will typically depend on:
(i) whether or not the affected woman already has children and/ or whether the intended family was complete;
(iii) depression or psychological scarring;
(iv) whether a foetus was aborted."
… Chapter 6(F) Infertility, whether by reason of injury or disease, with severe depression and anxiety, pain and scarring. The bracket, with 10% uplift, is £96,030 - £141,630
Chapter 6(I)(c) Bowels – severe abdominal injury causing impairment of bowel function often necessitating temporary colostomy (leaving disfiguring scars) and/or restriction on employment or diet. The bracket is £37,000 - £58,300
Chapter 6(J)(c) Bladder – serious impairment of bladder control with some pain and incontinence. The bracket is £53,520 – £66,830."
The Guidance was updated in October 2017. The relevant brackets are now: Infertility £100,760 to £148,540; Bowels £39,090 to £61,140; Bladder £56,100 to £70,090.
"22. Having taken into account the parties authorities and submissions I award the global sum of £160,000 for PSLA. This figure takes into account the fact that, for the reasons expressed below, there will be no award for provisional damages for the risk of deterioration in the Claimant's psychological condition, and no damages in respect of surrogacy in California. I have allowed for an additional £15,000 to cover these two matters. (£145,000 + £15,000)."
Note 3 Janson v Driefontein Consolidated Mines Ltd  AC 484, 500, per Lord Davey. [Back] Note 4 “It is a very unruly horse, and when once you get astride it you never know where it will carry you”:
Richardson v Mellish (1824) 2 Bing. 229, 252, per Burrough J. See also MoneyMarkets International
Stockbrokers Ltd v London Stock Exchange  1 WLR 1150 at . [Back] Note 7 The statement accompanying the 2018 Remedial Order, mentioned above, said: “Surrogacy has an increasingly important role to play in our society, helping to create much-wanted new families for a range of people. The UK Government recognises the value of this in the 21st century where family structures and life-styles are much more diverse.” [Back]
Note 3 Janson v Driefontein Consolidated Mines Ltd  AC 484, 500, per Lord Davey. [Back]
Note 4 “It is a very unruly horse, and when once you get astride it you never know where it will carry you”: Richardson v Mellish (1824) 2 Bing. 229, 252, per Burrough J. See also MoneyMarkets International Stockbrokers Ltd v London Stock Exchange  1 WLR 1150 at . [Back]
Note 7 The statement accompanying the 2018 Remedial Order, mentioned above, said: “Surrogacy has an increasingly important role to play in our society, helping to create much-wanted new families for a range of people. The UK Government recognises the value of this in the 21st century where family structures and life-styles are much more diverse.” [Back]