Aspects of medical treatment for fertility may raise questions of liability to others

Three ongoing matters should be noted:

First is a wide-ranging examination of surrogacy by the Law Commission. Its consultation paper ‘Building families through surrogacy: a new law’ closed earlier this month and proposed creating new regulation around surrogacy and clearer controls on associated payments. Post-consultation recommendations are likely to emerge some time in the next year or so.

One strand of the Law Commission’s research examined international surrogacy arrangements, which it suggested account for up to half of such arrangements entered into in the UK. That international context provides a tangential connection to a current case due to be heard by the Supreme Court in December: XX v Whittington Hospital NHS Trust.

The facts in XX were that the claimant became infertile due to the admitted negligence of the defendant hospital. She sought to recover, as damages, contractual payments made to a commercial surrogate parent in the USA. The Court of Appeal permitted the claim and the hospital appealed to the Supreme Court. As the Law Commission pointed out “Recently, in the context of a medical negligence claim, the Court of Appeal has allowed a woman to claim the costs of commercial surrogacy in California as damages arising from a clinical negligence claim against an NHS trust.” The ongoing case raises questions of public policy and ex turpi causa arguments given that surrogacy payments (other than reasonable expenses) are presently illegal in England & Wales but are permitted in California.

Third and finally is the decision last month in Cole and Martin v IVI Madrid and Zurich Insurance, which was delivered on 24 September 2019 by HHJ Rawlings sitting as a judge of the High Court (which has not yet been reported, other than on Lawtel). The claimants contracted with IVI for fertility treatment which was delivered in Spain. The two children born as a result of the treatment both suffered from cystic fibrosis and claims were made against the clinic in contract and tort, with Spanish law applying to the substance of both. A significant issue in the case is whether the English court has jurisdiction over the claim to join the defendant clinic to the direct action brought here against its Spanish liability insurer. This is governed by the re-cast Brussels 1 regulation and is far from an easy point.

An earlier case which turned on this question of jurisdiction – Keefe v Hoteles Pinero & Mapfre – was comprised by the parties after a Supreme Court hearing in 2015 had resulted in the matter being referred to the Court of Justice of the EU (but as a result of the compromise the reference was not pursued).

The recent decision in Cole builds on Keefe and on the decision this April in Lackey v Mallorca Mega Resorts and Generali (a tetraplegia claim arising from an accident in 2017 in a swimming pool in Magaluf). The outcome in Cole last month was that certain issues of jurisdiction would, as in Keefe, be referred to the CJEU, although the exact terms of the questions to be referred are not yet known.

The critical importance of the point is that it could allow claimants in England who are injured in accidents in the EU to pursue defendants in English courts for the balance of damages over and above any policy limits which would be recoverable in a direct claim (made in England) against foreign insurers. Such a possibility looks highly attractive when compared to the complicated alternative of bringing proceedings abroad against the insurer.


Alistair Kinley. Director of Policy & Government Affairs


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