A surrogacy lawyer’s take on the BBC’s new drama: ‘The Nest’

April 3, 2020
The BBC’s new prime-time Sunday night drama tells the story of a surrogacy arrangement set in Glasgow. NGA Law was delighted to advise the BAFTA award-winning author, Nicole Taylor, on the script some time ago and it is great to see the programme come to life. But how does the story measure up with the law and the reality of UK surrogacy?

The Nest portrays a wealthy Glaswegian couple who are unable to conceive and by chance meet a vulnerable young woman, Kaya who (unbeknownst to them) seems to have a sinister criminal background. Kaya offers to be the couple’s surrogate on the condition that she is paid £50,000 (as the couple say that is what they would have paid for an international surrogacy arrangement). After their UK fertility clinic refuses to do the embryo transfer, episode one ends with the characters going abroad for treatment.

Could Kaya really be their surrogate?

There are no laws dictating who can and cannot be a surrogate. Fertility clinics in the UK are not allowed to find a surrogate for you, but there are non-profit surrogacy agencies which match intended parents and surrogates (including our sister organisation Brilliant Beginnings). UK surrogacy organisations screen surrogates, to varying degrees, and will look at:

  • Any criminal history,
  • Age,
  • Physical and psychological health,
  • Previous pregnancies
  • And general stability.

It is very unlikely that a woman like Kaya would have cleared these processes with a UK surrogacy organisation. However, parents do not need to use a surrogacy organisation and some do find surrogates privately.

Even if intended parents meet their surrogate without being matched through an agency or their surrogate is a friend or family member, agencies can help with drawing up a surrogacy agreement, which although they will not be legally binding, are incredibly valuable. Surrogacy agreements help everyone ensure they are on the same page on important issues relating to the pregnancy and they promote transparency in the surrogacy arrangement.

Do clinics really refuse treatments?

The Human Fertilisation and Embryology Authority‘s Code of Practice sets out the obligations of UK fertility clinics dealing with surrogacy treatment. Clinics can refuse treatment, although generally speaking there is a presumption in favour of treatment unless there is evidence of cause for concern, including potential risk to the welfare of the prospective child.

We see the characters in The Nest partake in counselling; the law requires counselling to be offered to patients and ‘proper information’ to be given before fertility treatment is provided. When deciding to refuse treatment, a clinic must take into account the views of all staff who have been involved with caring for the patient(s).

Could they really go abroad for the embryo transfer?

In the TV show after the characters are refused treatment at a UK fertility clinic they go abroad for fertility treatment. In reality, lots of people go abroad for fertility treatment for many different reasons.

However, moving an embryo from the UK to an overseas clinic, as this couple did, can be a lengthy process and there are strict legal requirements clinics must satisfy. In brief, they would need to be satisfied that the receiving overseas clinic met various safety and quality standards and the gamete providers have provided their written consent.

Could a UK surrogate be paid £50,000?

There is a culture of payments for UK surrogacy being for expenses only, and UK surrogates are typically paid £12,000 to £18,000 overall (although individual circumstances vary). However, it is a common misconception that it is illegal for parents to pay a UK surrogate more than her reasonable expenses. In fact, there is no such offence in UK law. The issue of payments is simply a consideration for the family court, which must authorise payments of more than reasonable expenses before it can make a parental order (which permanently reassigns parenthood). There is no definition of reasonable expenses (nor a fixed amount as to what is allowed), so the court must decide what is reasonable in each case. In our experience, the court always wants to know that things have been handled responsibly, and there has been no exploitation or attempt to circumvent child protection law, but in practice there is a lot of flexibility over what is paid and very little scrutiny of what expenses have been incurred. A payment of £50,000 would certainly be very unusual in the UK, but it would not be illegal.

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