Tort

Medical negligence causing infertility - claimant not entitled to damages for costs of foreign surrogacy arrangement outlawed in England - Court of Appeal not to consider new evidence on appeal relating to different type of surrogacy arrangementBriody v St Helens & Knowsley Area Health Authority: CA (Lords Justice Henry, Judge and Hale): 29 June 2001The claimant, alleging that by reason of medical negligence for which the health authority was liable she had become infertile, claimed by way of damages the costs of a surrogacy procedure to be carried out in California under an agreement which was outlawed in England, using the embryos created from the claimant's eggs and her partner's sperm.Mr Justice Ebsworth [2000] Gazette, 3 February, 33 rejected her claim as being contrary to public policy and found that the chance of the procedure succeeding was in any event very slim.

The claimant sought on appeal to adduce new evidence of an alternative surrogacy arrangement which was not unlawful in England, using donor eggs, and showed a slightly increased chance of success.

Stephen Irwin QC and Jonathan Glasson (instructed by Freethcartwright, Nottingham) for the claimant; Sally Smith QC and Charles Feeny (instructed by Hill Dickinson & Co) for the health authority.Held, dismissing the appeal, that on public policy grounds the court would not award surrogacy costs based on an outlawed agreement; that, since the chances of success under the arrangement proposed at trial were vanishingly small, it would be unreasonable to require the health authority to fund it; and that the court would not allow the claimant to adduce new evidence on appeal to enable her to rely on a different form of surrogacy from the one she had chosen to rely on at the trial, since that would undermine the finality of litigation and in any event the alternative proposal would not be restorative of the claimant's position before she was injured since neither the child nor the pregnancy would be hers.