UK Supreme Court paves way for funding commercial surrogacy

A recent ruling by the UK Supreme Court has brought the legalisation of commercial surrogacy, and its funding by taxpayers in the United Kingdom, several steps closer. Commercial surrogacy involves paying a large fee to the surrogate mother and is banned by most countries as a form of baby-buying.

On April 1st, the Supreme Court’s since-retired President, Lady Hale, provided the leading Judgment in Whittington Hospital NHS Trust v. XX. This Judgment has, for the first time, legitimised compensation claims against the taxpayer-funded National Health Service (NHS) in order to pursue commercial surrogacy services abroad that are illegal in the UK.

The coronavirus pandemic has so far kept this Judgment off the media radar, but according to Gary Powell, the European Special Consultant to the Center for Bioethics and Culture, California, it represents “an ominous development”.

The court upheld a claim from a woman to pursue four commercial surrogacy pregnancies in California at the expense of the UK taxpayer. The judgment is notable in that commercial surrogacy is illegal in the UK, and two Supreme Court Judges dissented from the Judgment on the grounds that it is against public policy for a court to award damages to enable conduct abroad that is illegal in the UK.