Briody v St Helens and Knowsley Area Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2000 |
| Date | 21 January 2000 |
| Court | Queen's Bench Division |
Court of Appeal
Before Mrs Justice Ebsworth
Damages - claimant unable to have children in consequence of negligence - damages cannot include surrogacy cost
It was contrary to public policy to award damages to enable a claimant, who was unable to have children as a result of the defendants' negligence, to enter into a commercial surrogacy agreement abroad, when such an agreement would be unlawful in the United Kingdom.
Mrs Justice Ebsworth so held in the Queen's Bench Division when awarding damages of Pounds 69,618 plus interest to the claimant, Margaret Patricia Briody, in respect of her claim in negligence brought against the defendants, St Helens and Knowsley Health Authority.
Mr Richard Hone, QC and Mr John Benson for the claimant; Miss Sally Smith, QC and Mr Charles Feeny for the defendants.
MRS JUSTICE EBSWORTH said that in 1973, the defendants had negligently performed an emergency caesarean section and hysterectomy on the claimant. Her child had been stillborn and she was now unable to have children.
The claimant now planned to have a surrogate child through a commercial arrangement with a woman in California, using her own eggs fertilised by the sperm of her unmarried partner, and claimed the cost of the arrangements as general damages.
The question was whether it would be contrary to public policy to award damages under that head. At present, the law in England was that surrogacy agreements were unenforceable, and there was a criminal sanction for commercial surrogacy agreements.
There had been cases, such as In re Adoption Application (Payment for Adoption)ELR ((1987) Fam 81), concerning whether or not a surrogacy agreement amounted to a breach of the Adoption Act 1976 in respect of the placing of the child and any payment made.
It was clear that whatever arrangements were made pursuant to Californian law, if a child was born the agreement would bring with it in England the need for the appointment of a guardian for the child, and court proceedings.
In both adoption proceedings and proceedings for a parental order under section 30 of the Human Fertilisation and Embryology Act 1990 the applicants must be husband and wife.
On any view of our law the claimant sought an award of damages to acquire a child by methods which did not comply with that law; that seemed to her Ladyship to...
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...v Trustees of the British Museum [2005] EWHC 1089.Bendit v Dickson (1945) No 1331 (KB).Briody v St Helen’s and Knowsley Health Authority [2000] 2 FCR 13.Campbell’s v Campbell’s (1949) IH (1 Div).Dormeuil Freres v Feraglow [1990] RPC 449.Ellinger v Guiness [1939] 4 All ER 16.English and Scot......