fbpx

Commercial Surrogacies Abroad Are Not Illegal – Court of Appeal Ruling

15th March 2019 By Arman Khosravi

Although commercial surrogacy businesses have long been banned in the UK, the Court of Appeal recently ruled that a clinical negligence victim would not be breaking the law were she to enter into such an arrangement in California, where a more liberal surrogacy regime prevails.

The woman is unable to have children after she developed cervical cancer and had to undergo radical surgery. The NHS trust that was responsible for her treatment was ordered by a judge to pay her almost £600,000 in compensation after it admitted that four opportunities to diagnose her condition earlier had been negligently missed.

The woman wishes to have a family and, prior to the operation, a dozen of her eggs had been frozen. She objected to the UK’s restrictive surrogacy regime, and argued that the trust should pay the costs of her entering into a commercial surrogacy agreement in California, where such arrangements are lawful.

In refusing to make an award under that head, however, the judge in the lower court noted that, under the Surrogacy Arrangements Act 1985, it is a criminal offence to advertise in search of a surrogate or in order to offer oneself as a surrogate. In those circumstances, he found that requiring the trust to fund arrangements in California which would be illegal in the UK would be contrary to public policy.

In ruling on the woman’s challenge to that decision, the Court noted that, under English law, surrogate mothers are not permitted to bear children for reward and can only be paid their reasonable expenses. They remain the legal parents of children to whom they give birth and intended parents must obtain court orders to have their parental rights recognised.

In upholding the woman’s appeal, however, the Court found that the policy of the Act is to criminalise the provision of surrogacies as a business. Individuals who enter into such arrangements are not themselves committing a criminal offence. In those circumstances, the woman was not proposing to do anything illegal under either English or Californian law. It could not, therefore, be said that her desired recourse to commercial surrogacy offended against morals or public policy.

In those circumstances, in the Court’s view it would be incoherent to deprive her of her claim for damages at the outset when she personally proposed no wrongdoing. The purpose of the compensation award was, so far as possible, to put her in the same position that she would have been in but for the admitted negligence, and there was no bar on her recovering the costs of entering into commercial surrogacy in California. The total amount of her compensation should therefore be increased accordingly.

The NHS trust involved has announced its intention to challenge this ruling in the Supreme Court and we will inform you of the outcome of the appeal in due course.

Source: Concious

Latest News

Award That Requires Borrowing Made Into Court Order

17th May, 2024 By

Disagreements between separating couples all too often result in litigation that substantially reduces the assets available to them, as was illustrated by a case that recently reached the High Court. At issue was whether awards made by arbitrators in financial remedy proceedings can be made into court orders even if that would require one of the parties to borrow money. The couple had previously had a relationship lasting a few years before resuming their relationship in 2015. They had two children before separating again in 2019. Following their separation, the...

Inheritance Disputes – Costs Risks Can Be Reduced

15th May, 2024 By

Arguments about what someone promised before their death can lead to significant legal costs. However, if faced with a claim against the estate, there may be steps the beneficiaries or executors can take to reduce the risks, as a recent High Court case illustrated. A man had left a farmhouse and agricultural land in Cornwall to his wife, with whom he had also jointly owned a neighbouring area of land. After his death, one of the couple's daughters and her husband claimed that he had told them he wanted them...

Share Rounding Error Does Not Prevent CGT Relief

13th May, 2024 By

There are often very specific rules that must be complied with in order to claim tax reliefs, but if a small mistake arises, the courts may be able to provide assistance. In a recent case, the First-tier Tribunal (FTT) found that an investor was entitled to Entrepreneurs' Relief on the disposal of his shares in a company, despite owning one share fewer than he needed to qualify for it. The investor had agreed to purchase 5 per cent of the shares in the company for £500,000. He wished to own...

Wife Entitled to Maintenance Until Sale of Family Home

10th May, 2024 By

When divorcing couples disagree on how assets should be divided, the courts will seek to arrive at a fair outcome for both parties. In deciding how the proceeds of sale of a former couple's home should be apportioned, the Family Court agreed with the wife that she should receive maintenance payments until the sale took place. The couple had married in 2006. Following a brief separation, they had reconciled for two years before finally separating in 2022. The husband and wife both contended that they should be entitled to about...