Garry Sturrock

Those who watched BBC One’s recent four-part drama, The Nest, will no doubt agree that it made for fantastically gripping viewing. The implausible plot centred around a well-heeled, Glasgow-based couple desperate to start a family of their own but who were unable to conceive naturally. It followed their chance encounter with a troubled teenager, eager to assist them by offering to be the surrogate of their last viable embryo in exchange for a hefty financial reward. Without giving too much away, it explored the turbulent journey of the surrogate and prospective parents and the breakdown in their surrogacy arrangement.

While raising awareness of surrogacy is welcomed, it’s worth remembering that television dramas are for the purpose of entertainment and shouldn’t be considered representative of what it’s like to be involved in surrogacy. Contrary to the conclusions some may reach from their Nest-informed education, most surrogacy arrangements do not break down.

Surrogacy allows those who, for medical reasons (whether relating to gender, physical or mental health), are incapable of gestating a foetus to full-term or delivering a healthy baby have a child. Intended parents tend to include mixed-sex couples, same-sex female couples, single women who experience infertility and same-sex male couples or single men who, for reasons of gender, cannot conceive a child.

Surrogacy is legal in the United Kingdom, provided that it is done on a non-commercial basis. No payments, except reasonable expenses, can be made by the intended parents to the surrogate. These include the cost of treatment and costs that are incurred by the surrogate as a consequence of her pregnancy and birth, such as travel expenses (for medical and other appointments), childcare if she has other children, loss of earnings and the cost of maternity clothes. It is difficult to see how the payment of £80,000 by intended parents, Dan and Emily, to their surrogate, Kaya, in The Nest would have been viewed as lawful.

A surrogacy agreement is a written agreement between the surrogate and intended parent(s) which sets out the terms of their arrangement. Many clinics require an agreement to be in place before offering treatment. Although this may have helped Dan, Emily and Kaya in The Nest set the ground rules, these agreements are not enforceable in Scotland and solicitors are prohibited from assisting clients by drafting a surrogacy agreement for commercial gain.

At birth, any baby born through surrogacy is the child of the surrogate (and any spouse of the surrogate), even where the child has no genetic link to the surrogate or her spouse. Intended parents who have a genetic link to the child obtain the status as the child’s legal parents by applying to the court for a parental order. Those who have no genetic link with the child need to consider other options, such as a direct petition for adoption. In some situations, particularly where surrogacy arrangements have broken down, intended parents are only able to apply for orders regulating the child’s residence with them and do not become the child’s legal parents.

Surrogacy law in the United Kingdom may experience a shift in approach in the coming years. The Law Commissions of Scotland and England & Wales say current laws are “outdated and should be improved to support the child, surrogates and intended parents.” Their proposals for reform involve a “new pathway” which would involve a shift in the current approach, with proposed parent(s) becoming the legal parent(s) when the child is born, subject to the surrogate retaining a right to object for a short period of time after the child’s birth.

They have also proposed the removal of the requirement of proposed parents having a genetic link with the child to apply for a parental order, where medically necessary. Finally, it is proposed that a surrogacy regulator should regulate organisations which will oversee surrogacy agreements and the creation of a national register to allow children born of surrogacy arrangements to access information about their origins.

Gary Sturrock is a senior solicitor at Brodies LLP