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Anthony Searle published in Family Law journal

22nd October 2019


Anthony Searle has written an academic article which has been published in this year’s October edition of Family Law, the leading practitioner journal and the publication of record in the field of family law since 1970.

The article is entitled, ‘Commercial surrogacy: the birth of a new head of loss in clinical negligence claims’. Co-authored by Anne Kavanagh of Irwin Mitchell, the article focuses on the impact of the important clinical negligence case of XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, [2019] PIQR Q4, in which Christopher Johnston QC and Claire Watson acted on behalf of the successful appellant. That same decision is now being appealed to the Supreme Court.

Anthony was invited to write the article following his considerable interest in this case since the High Court’s decision in 2017. He has also written blog posts on XX on the UK Healthcare Law Blog (here and here) and was interviewed about it by LexisNexis earlier this year.

A summary of the article is as follows:

“This article analyses XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, [2019] PIQR Q4, the first case in which a court has awarded damages for the costs of overseas commercial surrogacy. After outlining English law on surrogacy and the significant, yet outdated, decision in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2002] QB 856, the authors discuss the High Court’s decision in XX. Thereafter, they focus on the key aspects of the Court of Appeal’s judgment, namely public policy (following Patel v Mirza [2016] UKSC 42, [2017] AC 467) and the distinction between ‘own egg’ and ‘donor egg’ surrogacy. The authors consider the impact of the judgment and set out learning points for practitioners. It is envisaged that claimants will seek to rely on XX in a variety of claims but to varying degrees of success, the principle of reasonableness being the key limiting factor. The authors’ thesis is that, despite being an important decision, XX has not created new law and is simply an application of settled legal principles in the context of modern society. However, this will not be the last word on XX; the defendant Trust’s appeal to the Supreme Court will be heard in December 2019. It is hoped that this article will be of interest to both clinical negligence and family practitioners.”


The webpage for the article can be found here. Its citation is: (2019) 49 Fam Law 1186.


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