Well, surely you can’t. Actually, since Whittington Hospital v xx you can. The Supreme Court has allowed it!

In this case the defendants negligently processed several of the claimant’s smear tests and as a result failed to diagnose cancer. The claimant lost the ability to bear children but succeeded in freezing some of her own eggs before treatment began. She claimed damages to cover the cost of a surrogacy arrangement in the UK, using her eggs, and for the costs of a commercial donor surrogacy to be carried out in the US (where the arrangement would be legal).

There was no issue regarding her right to recover damages to fund the UK surrogacy arrangement contemplated. However, commercial surrogacy is banned in the UK and the UK courts cannot enforce a foreign contract which is contrary to public policy. Surely it followed that damages to fund a commercial arrangement overseas were not recoverable? Lady Hale and a majority Supreme Court determined otherwise. The court held that the arrangements contemplated were not contrary to public policy. It noted that attitudes to family life in the UK had changed fundamentally since an earlier (2001) case which had decided a similar matter differently and confirmed that it was not bound by the earlier decision. The court also referred to the fact that the Law Commission had made proposals to Parliament which would allow the kind of US surrogacy to take place in the UK.

Damages were awarded to cover the overseas surrogacy enterprise.

It would probably be a good idea not to extrapolate further from this case. Just go with the particular facts!