International Commercial Surrogacy as a New Head of Tortious Damage: XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832.

Abstract

In XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, the Court of Appeal recognised commercial surrogacy in California as a permissible head of damage in a case of negligently inflicted infertility. Due to changing public policies and judicial opinion regarding the practice, and by incorporating the three-part test of illegality developed for civil claims by the Supreme Court in Patel v Mirza [2016] UKSC 42 into tort law, the Court of Appeal held that the principle of restorative justice required a departure from the precedent established in Briody v St Helens and Knowsley AHA [2001] EWCA Civ 1010.