England and Wales High Court (Queen's Bench Division) Decisions

"This arises as a delayed or protracted response to a stressful event or situation, either short or long-lasting of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone (e.g. natural or manmade disaster, combat, serious accident, witnessing the violent death of others or being the victim of torture, terrorism, rape or other crime."

"Enduring personality change may follow the experience of catastrophic stress. The stress must be so extreme that it is unnecessary to consider personal vulnerability in order to explain its profound effect on personality. Examples include concentration camp experiences, torture, disasters, prolonged (my emphasis) exposure to life threatening circumstances, e.g. hostage situations - prolonged captivity with an imminent possibility of being killed. PTSD may precede this type of personality change, which may then be seen as a chronic, irreversible sequel of stress disorder. In either circumstance, however, enduring personality change meeting the description given below may develop without an interim phase of manifest PTSD. However long term change in personality following short term exposure to life threatening experience such as a car accident should not be included in this category, since recent research indicates that such a development depends upon a pre-existing psychological vulnerability."

17. I note in the context of "personality change" the diagnostic significance of independent reporting. M/s Briody suffered her first loss of a child at 17 and the index trauma at 19; I have no evidence (apart from the unexplored exchange between the GP, Dr Sugden, and Mr Moss, which I have not relied on) as to her early personality other than self reporting. There is nothing in her GP notes over twenty seven years which suggests it, save the matters to which I have already referred and "stress" in 1984 which manifested itself in migraine and was attributed to the fact that her brother in law had cancer. It is commonplace for personality to change with increasing maturity, and also as a reaction to various "life events" such as marital discord, illness and injury.

18. Professor Katona sets out in his reports the accounts given to him by the Claimant and I do not propose to set them out. They are substantially consistent with her evidence, save in certain striking and in my view, significant, respects. The 1997 report contained no reference by the Claimant to "loss of self confidence and self esteem" and no suggestion of the attendance of a priest at the hospital with its implication of an awareness of a "life threatening" event in 1973. I note that the account is the same as that given in the Claimant's first three witness statements. There is a specific error in the factual sequence relating to her first pregnancy, which Professor

Pilkingtons and inconsistency as to the period for which she felt housebound after the loss. Professor Katona appears to have been told it lasted "at least a year" from March 1973, and that she started work about a year after the second still birth, whereas her witness statement of 17th November 1999 says at para 3:

M/s Briody clearly told him of being unable to accept the hysterectomy and its consequences for several years, of vivid nightmares and "flashbacks" of haemorrhaging and the shock of the scar. She told, although she disputes it, Dr El Assra that the symptoms lasted eighteen months, which is more consistent with the life she was actually living. The symptoms described are those of PTSD, e.g. crying, depression, anger, withdrawal and irritation, but I accept from Dr El Assra also of maladjustment to loss. There is an overlap of symptoms including the most severe such as the nightmares of "babies and blood," or even pseudo hallucinations.

At the time of his first examination Professor Katona found no symptoms of depression having tested the Claimant. That remained so in February 1997 at the time of the telephone consultation; at that time however she was, when faced with the pregnancy of a colleague, having difficulties in concentration, suffering low mood and sleep disturbance.

I note that that was when this litigation was ongoing. In his 1999 report Professor Katona reports M/s Briody as saying that after the March 1973 events she had;

This had lasted until 1990. She was saying, and I accept, that she had found litigation much worse than she had expected; she was reporting distress, sleep disturbance and the recurrence of the graphic dreams of earlier years. The publicity and reactions surrounding her plans for surrogacy had caused stress and her concentration was again impaired. She was complaining of problems in her sexual relationship with Mr Hill because of her concern with her scarring and that he was sometimes "irritated" by her preoccupation with her past traumas and her hopes for surrogacy. At this interview, on testing, she scored within the moderate depression range. (He thought she was worse during the trial). He diagnosed a relapse triggered by the detailed review of trauma necessitated by litigation and felt it likely that she would need treatment in the form of anti depressant drugs, sex and cognitive behaviour therapy. His primary diagnosis remained PTSD with an enduring personality change. I observe that Professor Katona was not able to check M/s Briody's account with those who had known her over the years, which he accepted would have been desirable; at some stage he received her GP records, but could not say when. It seemed to me he had not reviewed them, as Dr El Assra did, to check her assertions of "avoidance of medical/hospital contact". Had he done so I conclude he would have found material which does not sit comfortably with that aspect of the Claimant's case. Professor Katona expressed the distinction between normal grieving and PTSD in these terms: The former involved a relatively rapid sequence of self limiting experience over months. The features were feelings of shock, anger and denial, but there was then acceptance. With PTSD, the onset of which could be delayed, there was more than just "loss", but usually loss with specially dramatic trauma. In his opinion M/s Briody strikingly described symptoms which would include those listed in the International Classification. He said that the factors leading to PTSD were the second stillbirth, plus the hysterectomy, plus the threat of personal death. He placed weight, rightly in my view, on the double loss of a child and the capacity to bear a child following upon the 1972 still birth which had "sensitised" her. In his opinion this made her case properly comparable with those of Holocaust and torture victims. She gradually recovered, to a degree, until current stresses of surrogacy and litigation have led to a resurgence of symptoms.

He accepted in cross examination there was at the time of his first report no evidence of an irreversible personality change but the Claimant provided more during 1999; she was, he thought "putting a good face on it" in 1996/7. I do not accept that; why should she? He would classify her personality disorder as persistent rather than irreversible. He was surprised in the context of his diagnosis that the marriage had lasted so long and that she had not raised her trauma and scar related sexual difficulties until 1999. However he still considered she had a present need for psycho sexual treatment; as I observed the Claimant I agree with him. She was patently truthful when she talked of her "terrible sexual hang ups". He was asked to consider the impact of his view of her present need for treatment upon her psychological examinations for surrogacy and commented that "perhaps she had cloaked her depression". She had good reason to hide it from them, but not from him in the context of a medico legal claim. I concluded that the Claimant was indeed capable of that and have as the result approached her evidence of symptoms with great caution. Professor Katona's evidence was that in addition to the feelings of loss "fear, horror and helplessness and the perception of a threat to life" were important. He concluded that the latter factor was met by her evidence that the priest was there when she recovered consciousness and was telling her she was very ill.

I reached a conclusion, before hearing Dr El Assra, that there were two fundamental weaknesses in Professor Katona's evidence in support of Chronic PTSD resolving into an enduring personality disorder. Firstly the evidential basis for the diagnostic criteria set out above. I accepted M/s Briody's description of feelings of emptiness and hopelessness and that certainly the former was probably a fairly constant feature of her life, but I found the evidence for the other aspects unacceptable; in particular the "perceived threat to life", which lacked the element of being "prolonged". Secondly, his interpretation of her life experiences between 1973 and 1990. He accepted that there were many adverse circumstances in her life not related to the negligence and that notwithstanding that she worked and she cared for many foster children without seeking any assistance. I accept that in 1990 the breakdown of her marriage acted as a spur to review her life, maturity and time being important, but on balance of probabilities it was not the result of the gradual resolution of a major psychiatric illness. I concluded that the case for chronic PTSD was not made out, nor was that for an enduring personality disorder.

19. Dr El Assra accepted that the Claimant had, as the result of the trauma of 1973, suffered some type of psychiatric reaction. He did not, I am satisfied, seek to minimise the tragedy of the events. The essence of his evidence was that he could find no evidential basis for a diagnosis of PTSD or enduring personality change. He said that it was important to draw a distinction between evidence of loss, the loss of the baby and of child bearing capacity and traumatic fear. The former could result in an adjustment disorder; the latter was critical for a diagnosis of PTSD. Either could lead to a permanent personality change if the adjustment disorder had amounted to a psychiatric illness. In the case of M/s Briody the double loss, in traumatic but contained circumstances, had led to an adjustment disorder in the form of a grief reaction; he could find no evidence of a prolonged reaction over many years. He could find no evidence of a perceived personal threat to life during the birth. I accept his opinion on that issue, finding it entirely consistent with the WHO diagnostic criteria. The catastrophic trauma M/s Briody described, whilst I accept that she felt frightened and to an extent helpless in hospital, does not in my view equate with the fear of, for example, a hostage situation or the lethal crush at Hillsborough. I reach that view firstly because the environment was not a threatening but a therapeutic one and secondly because I do not accept her evidence that she felt it to be life threatening because of her awareness of the attendance of the priest to administer the Last Rites. Dr El Assra said that too much horror combined with helplessness can lead to PTSD; I accept that together with his evidence that:

I did not accept his evidence that the previous loss may in some way have inoculated her against the effect of the second; Professor Katona's evidence of "sensitisation" is more likely to be right. I do not rely upon her reaction to the first loss as any evidence of particular resilience; she may well have been able to come to terms with the first loss when it occurred, but the fact of it would be likely to form part of her reaction to the second.

Dr El Assra had clearly expressed doubts about the persistence and severity of the Claimant's symptoms. In May 1973 she saw the Consultant Mr Moss and was reported as "very well," with no complaints; thereafter she saw her GP about 36 times in the ensuing ten years. She made no complaints about the symptoms she is now describing, not even sleeplessness, nor was anything untoward observed. Librium was prescribed once, but that was for a skin condition. There were a series of hospital visits for specific problems of injury. M/s Briody explains her lack of complaint as arising from shame or embarrassment. I have taken account of the sketchy information relating to the delay in foster care approval, but I am unable to accept, even on a balance of probabilities that there was an "avoidance of Doctors and Hospitals" after the negligence. Dr El Assra was stringently cross examined and accepted that if the factual matrix was as reported to Professor Katona his diagnostic theory was tenable, but he disagreed with him taking into account such objective evidence as is available and he remained firmly against the diagnosis of personality disorder. I agree with him, save that I conclude the grieving/adjustment disorder was to varying degrees symptomatic for the 18 months the Claimant told him about in interview.

Dr El Assra could find no evidence of a continuing psychiatric illness; that is, I conclude strictly correct. It is not in my view inconsistent with Professor Katona's evidence of the Claimant's present need for therapy for what I see as a psychological state which derives predominantly from the physical trauma of which the scar serves as a reminder and which has been exacerbated by the litigation which involved a reliving of the events. I would not ordinarily have considered there was a need after so long for "bereavement counselling" but I do not think it is reasonably possible to distinguish between the types of treatment recommended.

20. I have to arrive at a figure for damages for Pain Suffering and Loss of Amenity excluding the surrogacy claim. I have considered the Judicial Studies Board Guidelines for infertility by reason of injury; where there is severe depression and anxiety, pain and scarring they suggest a bracket of £50,000-£70,000. The suggested relevant factors are:

I have also reviewed the relevant cases in Kemp and Kemp and in particular Biles v NE Thames Regional Health Authority, where a sum for psycho sexual therapy was allowed, and upon which Mr Hone QC lays stress; Grayson Crowe v MOD and Tredget v Bexley Health Authority. Mr Hone, stressing the "unique" nature of the injury put forward a figure of £75,000 based upon my acceptance of a 27 year period of PTSD. He emphasises the fact of the surgical removal of the uterus as a serious form of amputation and the major nature of the subtotal hysterectomy and its consequences. The scar is more extensive than the original Caesarean scar and includes a disfigurement from the insertion of tubes.

The Defendants accept a figure in the middle of the bracket, based upon their case that the claimant has not suffered PTSD, "severe depression and anxiety" and would on her own case in any event have had a second caesarean. Their figure is £60,000. The differences reflect the psychiatric evidence; having concluded that there was a grief reaction which endured in an acute form for about 18 months, no PTSD and no personality change, but accepting that the Claimant has lived and will continue to live with a deep sadness as the result of bereavement and infertility I consider an appropriate award under this head to be £66,000. In arriving at that figure I have taken account of Professor Katona's evidence as to her present condition which on balance of probabilities indicates a heightened sensibility to stresses which remind her of the original trauma.

There is I fear an inherent contradiction between the claim for surrogacy and the assertion that M/s Briody is suffering from a residual PTSD and it is to be noted that her own experts express misgivings about the wisdom of surrogacy, to put it at its lowest. I am not concerned with whether the Claimant is being sensible, nor does can my decision determine how she spends her damages; the issue for me is whether the claim she makes is sustainable in fact and in law. In addition to the evidence of Professor Craft and Professor Lord Winston I have read the relevant parts of the Warnock and the Brazier Reports (which came 14 years later); the current guidelines of the Human Fertility and Embryology Authority; the Cots brochure; the most recent view of the BMA and a series of cases in the Family division, including; A v C (a 1978 case reported at 1985 FLR at p 445) Re C (1985 FLR 847), the Baby Cotton case, Re WM (Adoption :Non Patrial) 1997 2 FCR. Re MW (Adoption: Surrogacy) 1996 3 FCR. and U v W (Att.Gen. Intervening) 1997 2 FLR.

I have read the relevant sections of the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990. The decision of the House of Lords in Macfarlane and Another v Tayside Health Board(Scotland)(W.L.R. 1999.3 p1301) has been argued before me in relation to the basis upon which an award of damages for Personal injuries should be made and in particular the extent to which there is a public policy element involved .That case which was concerned with the so called "wrongful birth" of a healthy child contains a comprehensive review of the law of compensatory damages from Livingstone v The Rawyards Coal Co,(1880 5 AC) onwards. Article 12 of the ECHR has also been raised by Mr Hone, but for the purposes of the hearing before me not relied on because of the decision in Kebilene. Mr Hone QC said that if the hearing had been after 2nd October 2000 he would have been arguing for a declaration of incompatibility in relation to ss 1 and 2 of the Surrogacy Arrangements Act.

22. The essence of partial surrogacy is that eggs are recovered from the ovaries of the "Commissioning mother" after IVF stimulation. They are inseminated and fertilised in a laboratory and then a number of embryos are placed in the uterus of a "surrogate mother" who has agreed to carry the child until birth and then surrender it to those with whom she had entered into an agreement. The treatment may have to be repeated and the likely success is very dependent on the age of the commissioning mother. According to the Manchester Fertility Services who were consulted by the Claimant before she approached Professor Craft assisted fertility techniques fail more often than they succeed. Figures for 1998/1999 produced by Professor Craft show the relationship of births related to chronological age to be :-

Those, at the Claimants age, are pessimistic figures absent of any problems apart from age and those which flow from age. The success rate ( and the number of attempts) falls off as each year passes. The Claimant's original intention was to pursue surrogacy with the assistance of a friend; that fell through and she reached an agreement with her sister Dolores and the latter's husband. That fell through when Dolores had a disagreement with Professor Craft as to the number of embryos to be implanted in her. Having failed to achieve a "friends and family" arrangement M/s Briody turned to commerce; that drove her outside England and Wales. The claim is now quantified by the Claimant at £99.745 and by the Defendants at £91,675, substantially more than the originally pleaded figure and is based upon two attempts to conceive by a combination of In Vitro Fertilisation (IVF) and ICSI (a form of sperm micro injection). In light of my conclusions on this head of damage I say only that the evidence before me supported the lower rather than the higher figure and I so find.

The case of the Claimant is 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 law. She has already used monies paid by way of Interim Damages to fund the agency arrangement. Her medical evidence from Professor Craft is that the Claimant has a chance, which he estimates at 1%, of a child being conceived with the use of her recovered eggs fertilised by the sperm of her partner Mr Hill, using the ICSI technique and inserted into the womb of the surrogate mother Melissa. If donor eggs of a younger woman were used the chances of success would be higher. The 1% figure reflects published HFEA tables for IVF and Professor Craft expressed the view that on balance the Claimant did not have a lesser chance than those tables show. His general view was that the wrong done to her and its effect upon her is such that she should be given the chance, although he does not consider she is being sensible and has told her so. He is challenged as lacking independence, being the Claimant's treating doctor and also for being outside the mainstream view on fertility because he treats women up to the age of 56 for fertility, which is six years older than any other clinic in the country. I did not think it was fair to attack him on the grounds of financial interest, because it is clear from the correspondence that he has repeatedly advised M/s Briody and her solicitors that failure is "almost inevitable" and that the course the Claimant seeks to follow is not a realistic option. He accepted that in the witness box and was supporting the Claimant because he felt she had the right to try. I felt that because of his strong interest in promoting the fertility of older women and his professional involvement with M/s Briody he was not wholly objective when assessing her chances. No one underestimates his experience and expertise in this field; he has been regularly undertaking successful IVF surrogacy for over ten years and his results are very good. His relevant CV discloses that having acquired the usual medical qualification to be expected of a consultant he was Director of Gynaecology at the Cromwell from 1982-1985; in that year he became Director of Fertility and Obstetrics studies at the Wellington and Visiting Professor at University College from 1985 - 1990. In the latter year he became, and remains, Director of a private Clinic in Harley Street, retaining the U.C. appointment. His work is and has for many years been restricted to the field of assisted conception. His present Clinic is licensed under the Human Fertility and Embryology Act; it was in 1993 the first to be licensed to undertake intracytoplasmic sperm injection (ICSI).

23. M/s Briody's case in law is that the Defendants by their negligence have deprived her of her child bearing capacity and that since compensatory damages should, so far as it is possible put her in the position she would have been in without the loss of her baby and her child bearing capacity the Defendants are liable to pay for her assisted attempts to have a child. It is argued that it makes no difference to the principle that she may be unable to have a child which is genetically linked to her. Surrogacy, argues Mr Hone QC, is not unlawful in England and there is therefore no public policy objection to it as a head of damage.

24. Professor Lord Winston is the Professor of Fertility studies at the Institute of Obstetrics and Gynaecology at Imperial College of Medicine, Consultant Obstetrician and Gynaecologist at the Hammersmith Hospital and Director of Service Reproductive Medicine, at the same institution. His extensive CV is before me, the Hammersmith is one of the worlds largest units involved in human reproduction and the largest in Europe for I.V.F. They see about 6,000 - 8,000 patients a year and in 1999 supervised about 2500 IVF cycles. He puts the chances of success with M/s Briody's own eggs at much less than 1%, the major adverse factor being the Claimant's age and the statistical unlikelihood that at 47 it would be possible to recover viable eggs and with them produce a child. He points out that the alternative also has problems given the suboptimal nature of Mr Hill's sperm which is not in issue.

His evidence was that probably the majority of gynaecologists regard surrogacy as a rather questionable procedure because of the perceived risk to the mental health of the bearing mother. The pendulum of opinion is swinging "further and further away from surrogacy" and becoming less rather than more acceptable amongst the medical profession and outside it. That was based upon regular meetings of the ethics committee of his own hospital where there are 80 staff plus four counsellors and takes account of a wide spectrum of staff, including the cleaners. They had ceased to offer a surrogacy service for the last ten years. Professor Craft does not accept that view, nor, I assume does his ethics committee.

25. The Defendants' case in law is that the Claimant is seeking damages to finance a contract which would be unenforceable in English law and which in the form in which she has entered into it, is in the UK unlawful because it is commercial. They argue that there is a difference in principle between those cases where over the years the Family Division has retrospectively "approved" such arrangements, the paramount concern of the Court being the welfare of the child, and this case where the Court is asked to fund the process of surrogacy. The Defendants argue that to require them to fund the creation and effective sale of life in this way is contrary to public policy and goes beyond the acceptable ambit of an award of damages. Miss Smith QC described it as the "ultimate commodification of human life". They further say that it is unreasonable on the facts of this case because the chances of the successful conception of a genetic child of the Claimant are so low. Both Miss Smith QC and Mr Hone QC agree that it is unnecessary to determine the detailed areas of medical dispute between Professor Craft and Professor Lord Winston because the chances on the Claimant's figure are so low that the factual decision would not effect the principle. I agree with that approach, fortified by the fact that there is no dispute as to the central problem militating against success, which is the Claimant's age. It is my view beyond argument that M/s Briody's chances of successful conception of an undamaged child are disproportionately worse than if she were 32-42. M/s Briody says she will accept a child however damaged and is opposed to any amniocentesis or abortion. Those are, I accept, views she honestly holds and for a practising Roman Catholic not surprising. It is however a potential factor which may affect her relationship with Melissa.

26. The factual history of the Claimant's desire to have a child through a surrogate is set out in relevant detail in her witness statements and the chronology. She was approved for surrogacy treatment by the Harley Street Internal Review Committee of Professor Craft's Clinic in August 1999, more than 2 years after her first consultation and medical examination in December 1997. Professor Craft's report of 14th July 1998 and the Clinic documents show Mr Hill's sperm as "somewhat suboptimal", but in his view it "should be adequate" for ICSI, which has, he said, only a 3% failure rate. On the 29th of May 1998 the results of a 2nd pelvic ultra sound scan showed the continuing presence of irregular cysts; because of that discovery the Claimant's brother paid £2,375 for a private laparoscopy. That was performed by Professor Craft at the Wellington on the 3rd June 1998 and followed up by a consultation on the 10th July. The scan showed that in addition to the irregular cystic structures on the left there was a cystic structure over the right ovary, measuring 5cm in diameter. The laser laparoscopy involved aspirating the cyst on the right ovary and the opening up of the cavity and lasering the inside with a CO2 laser. The cysts were benign; with respect to Professor Craft his initial reports/letters do not address in any depth, or in the case of the cystic structures and the laser treatment, at all, any difficulties caused by these problems. Nor does he do so in writing after Lord Winston raised it in his report of 3rd August 1999. Lord Winston asserted that it is

He confirmed that in evidence. This, with age, is one of Lord Winston's reasons for believing M/s Briody to be an "extremely poor" candidate for surrogacy. He considered "only a handful" of practitioners would be prepared to take her on, especially more than a quarter of a century after the subtotal hysterectomy.

27. I have serious factual misgivings about M/s Briody's explanations for the delay; I do not find it necessary to resolve them because they do not in my view affect the final question to be addressed. Had the surrogacy claim been pleaded before 1996 I can see an argument that the issue was relevant to the Limitation Act, but it is not significant now. The question is whether the chance of successfully giving birth to a child, particularly with her own eggs can be regarded as reasonable or is it so low that the defendants should not be ordered to pay for it?

28. I have set out 2 problem areas where there is either no dispute (age) or very little between the experts (cysts); there are according to Lord Winston other known difficulties which apply in this case. Lord Winston does not accept Professor Craft's assertion that only 3% of eggs fail to be fertilised after ICSI; his evidence was that most clinicians' experience is that with older women most experience shows that failures of fertilisation and of proper embryonic development are much more common. He relies for that on the HFEA figures for 1997. I consider it to be beyond argument that those are very poor results and I can see no sufficient evidential basis for accepting that M/s Briody's ovarian performance is better than average. Professor Craft regards the Claimant's hormonal levels as better than might be expected for a woman of her age; even if that is true it does not appear to me to outweigh the grave problems of age/cystic structures. It is a fact that the Claimant has had extensive pelvic surgery; there is an issue between Lord Winston and Professor Craft on the effect of this, but again it does not eliminate the adverse effects of age and cysts. Lord Winston rejected Professor Craft's view "it is better to have tried and failed", saying she would be devastated by failure. I agree.

His view is that pregnancy was not to be pursued at all costs; it may be better to come to terms with childlessness. That also seems to be reflected in Professor Katona's view; it seems to accord with common-sense. Professor Lord Winston said "HE WOULD NOT TREAT HER AND FEW WOULD". He did not say it was irresponsible for her to try, which is not the issue; no one can say that she is incapable of being fertilised but she is less likely to implant, more likely to miscarry and more likely to produce a damaged child. Mr Hill's suboptimal sperm count would also reduce the chances of success with donor eggs.

The Claimant is not married to the "commissioning father", although the Californian Contract suggests the contrary; there is no bar to the marriage and M/s Briody says she will marry Mr Hill. She and Mr Hill will go to the USA for the birth, interim contact will be confined to copies of scans etc.; it is a fairly arms length "arrangement". I note that M/s Briody's matrimonial status was not known at her school until the publicity in respect of this case. It does not matter but it causes me to wonder about the priority conception has assumed in her life.

M/s Briody would bring any child up a Catholic and if it was a product of her own eggs she would tell the child of its origins. She told me she was aware of the high risk of abnormality and had considered that from the Child's viewpoint; I did wonder how far she had really done so. My final view of Miss Briody was that she was totally committed to surrogacy and impervious to advice about it.

The issue for me is firstly is the claim in law sustainable when factually the defendants are being asked to find a treatment with, at best, a minimal chance of success and secondly is it contrary to public policy. The Family Division cases from A -v- C, through Blood in 1997 to U -v- W are limited assistance to me I comment only that the facts in A -v- C were so unattractive the strongly expressed views of Comyn J at first instance and of the Court of Appeal are in no way surprising and I doubt that they would be greatly different today. It was "a sordid commercial bargain" from which the genetic mother successfully resiled. Latey J in Re C (The baby Cotton case) expressed himself more pragmatically; there was no dispute between the "wholly suitable" commissioning parents and the surrogate and the Court was concerned with the interests of the child. The Warnock Committee was at the time considering the issues of "ethics, morality and social desirability" which arose.

The present law is that surrogacy agreements are unenforceable and there is a criminal sanction for commercial surrogacy agreements. The cases coming before the judges of the Family Division have often been concerned with whether or not the agreement entered into amounts to a breach of either s11 or s57 of the Adoption Act 1976 in respect of the placing of the child and any payment made. It is clear that whatever arrangements are made pursuant to Californian Law if a child is born this agreement would bring with it in England the need for the appointment of a Guardian for this child and Court proceedings. In both adoption proceedings and proceedings for a Parental Order under s30 Human Fertilisation and Embryology Act the applicants must be husband and wife. 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, notwithstanding Mr Hone QC's impassioned plea to the contrary. 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.

30. For the reasons I have set out the chances of success are so low that it is in my view unreasonable to require the Defendants to fund the enterprise. I cannot accept that because the Defendants' tort has rendered the Claimant infertile she is entitled to the cost of two cycles of her fertilisation with her own eggs being retrieved and implanted into a surrogate, which Mr Hone QC accepts will probably fail, then 4 with donor eggs; that does not confront the "unenforceable and illegal issue" nor does it confront the issues raised in Macfarlane. If one accepts, as I do, that the effect of that case is to make the essential test of a head of damages to be one of "reasonableness" what the Claimant seeks is not reasonable both because of the near inevitability of failure and the unlawfulness of the method to be used. The House of Lords in Macfarlane reviewed extensively the Common Law, United States, Commonwealth and European cases; whether one ultimately makes a decision on the basis of distributive or corrective justice the issue is whether what is sought by way of reparation can be regarded as reasonable having in mind the particular circumstances of the particular case. Lord Steyn said at p 1319A:

I do not think that the "traveller on the underground" would regard it as the business of the law of tort to provide a legal remedy doomed to almost inevitable failure and out-with our law. All their Lordships agreed upon a test of "fair, just and reasonable". It is clearly all of those things that M/s Briody should be compensated for the harm done to her, but to do so by an award for surrogacy goes too far. On the facts it does not appear that the result would be any different if one relies, as did Lord Clyde, on the idea of restitution because that too must be "reasonable". As Lord Millett put it at p 1342 E:

31. I do not on the basis of the quite exceptional facts of this case find it necessary or desirable to exclude a claim for the "costs of surrogacy" from the ambit of recoverable heads of damage in a appropriate case. Whatever my personal views, which may be reflected in those of the "man on the underground" one must recognise that this is a constantly developing field of science in an area where the concept of surrogacy goes back at least to Biblical times. 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. The Brazier Committee at 3:21/22 sets out the shifting position of the BMA and observed that "surrogacy has not withered on the vine"; in their view its "existence" is now accepted, but they considered commercial surrogacy to be unacceptable. That is why the Claimant's argument on this head is bad as contrary to public policy and must fail.

I have rejected the Claimant's case that the losses she suffered in 1973 caused a personality change or a persistent loss of self confidence and esteem and that as the result she abandoned her intended career and did not resume it until her mental state had recovered. M/s Briody's unplanned first pregnancy was the initial cause; if she had taken the course which she says her parents urged, that is not married Mr Moore, it is possible she might have resumed her education then. I accept as a possibility, without specific evidence, that in that context her mother offered to care for her child whilst she studied. I am unable to accept that the offer was made in the context of her decision to marry Mr Moore and to live with him and his family. If the second baby had been born alive M/s Briody would have been a young mother who, on her own evidence wished to have further children. She was not an academic "high flyer", nor, on the evidence, did she come from an academic family. She had a substantially unemployed husband and there was a real need for money. I think it very unlikely that she would have resumed her studies in 1975, nor can I see any logical basis upon which I could find that she would have done so at any intermediate stage before she in fact did so in 1990. It is possible to speculate that at the time her children reached school age she might have returned to her education, but against the background of her matrimonial unhappiness and medical problems such as sciatica and migraine, I think it unlikely. M/s Briody is a highly intelligent and now mature and educated woman; it would be easy to reach a false conclusion about "what might have been" had this tragedy not occurred. She has wholly failed to satisfy me that the Defendants' negligence was a crucial factor in her career pattern or that she would have pursued teaching prior to the final breakdown of her marriage.

In those circumstances it is unnecessary to do other than set out the agreed figures for her primary case and the alternatives canvassed; they are to be found at Appendix A.

33. The sum of £408 is agreed by way of past expenses and I have allowed the sums totalling £3,210 referred to in Professor Katona's report.

34. On the basis of my findings damages are awarded in the sum of £69,618 together with interest to be calculated. The interest element is disputed; the Claimant seeks a sum based on 7.5 years at 3% and the Defendants' submit 4 years at 3% to reflect the delays. The claim is very stale, but Mr Justice Ian Kennedy said in 1995 that the delays since 1993 were not the fault of either party. At p 4b of his Judgment he records the Defendants as then "fairly conceding" that the delays since 1990 were "inevitable". There has been some further delay to the trial date arising from the Claimant's change of solicitors and she has twice enlarged her case, which would have required time to investigate; I conclude that an equitable period is 5.5 years at 3%. In so far as it is relevant I have noted and agree with the Judgment of Mr Justice Penry Davey in Parry v North West Surrey Health Authority (The Times 05/01/2000) relating to the interest element where there has been an interim payment between judgment on liability and the assessment of damages. I have assessed damages on a conventional basis; it is apparently agreed that leave to appeal should be given to the Claimant to argue that the damages awarded should be increased in accordance with the current recommendations of the Law Commission. I will consider that if such an application is made.

35. There will be Judgment for the Claimant for £69,618 plus interest. Costs remain to be argued after the judgment is handed down.

Annex A

Approved by the court for handing down (subject to editorial corrections).

Light Connections Ltd & ors -v- Recover Ltd & ors.

LIST OF COMPANIES

53 & 54 Saraye Hamidien
Galobandak
15 Khordad
Tehran
Iran
Morteza Mahmoudi
Khalil Ravanparvar

Incorporated: 16 June 1994
Main Office: 53 Saraye Hamidien
Galobandak
Tehran
Iran
Directors: Morteza Mahmoudi
Darvish Allamouti

2. Pars Orient Ltd ( in administrative receivership and liquidation)

Incorporated: 18 June 1984
Name changed to Pars Orient Ltd 30 May 1985
Joint Administrative Receivers appointed 11 June 1993.
Compulsory Liquidation Order dated 28 July 1993.
Directors immediately prior to receivership:-
Abdul Latif
Latifa Latif (vice Secretary)
Roughia Ravanparvar Latif

Incorporated: 30 October 1985
Directors immediately prior to company being dissolved:-
Abdul Latif
Saleh Latif
Company Gazetted: 19 September 1989
Company Struck Off Register 10 January 1990

Incorporated: in about 1986.
Directors: Abdul Latif
Latifa Latif
Saleh Latif

Incorporated 2 July 1990 as Latif Carpets Ltd.
Change of name 21 March 1997.
Creditors Winding Up Order 21 May 1997.
Directors, immediately prior to liquidation:-
Arezo Latif (resigned 21 March 1997)
Saleh Latif (resigned 21 March 1997)
Ebrahim Farahany (appointed 21 March 1997)
Secretary: Saleh Latif (as at 9 September 1996)

6. Light Connection Limited

Incorporated: 29 March 1993.
Registered Office: Latif House,
Unit 1,
First Way,
Wembley,
Middx. HA9 0JE
Directors: Saleh Latif
Seretary: Golnaz Allamouti

7. Latif Group SL (Spain)

Incorporated: 23 July 1993
Directors: Amin Latif Mohammed
Latif Mohannad Saleh
Shareholders: Ali Latif Al Ali (70%)
Mohammed Amin Latif (15%)
Mohammed Saleh Latif (15%)

8. Recover Limited

Incorporated: 11 April 1995.
Directors: Latifa Bostani
Ali Reza Latif
Morteza Mahmoudi
Secretary: Ali Reza Latif

9. Melody Trading Ltd.

Incorporated: 16 June 1995
Director: Mohammed Amin Latif
Accounts: None Filed - dormant company.
Gazetted: 2 December 1997.

10. Melody Enterprises Ltd

Incorporated: 16 June 1995
Directors: Mohammed Saleh Latif
Secretary: Ali Latif Al-Ali
Shareholders: Ali Latif Al-Ali 1 Share.
Mohammad Saleh Latif 1 Share.
Accounts: Dormant Company
Gazetted: 2 December 1997

11. Latif Group Ltd

Incorporated: 20 September 1996.
Directors: Latifa Latif (appointed 29 July 1997)
Kazem Ravanparvar (appointed 1 May 1997)
Ali Reza Latif (appointed 28 October 1997)

12. Business Agenda Limited

Incorporated: 26 January 1993
Directors: Ali Ali Derwishi
Kazem Ravanparvar (resigned 8 August 1995)
Hajieh Toreihi (resigned 21 April 1995)