22nd April 2020, 11:53 am

The BBC’s latest five-part drama The Nest has received rave reviews for its stark and harrowing portrayal of a couple’s struggle to conceive and their complex and emotional journey through surrogacy.

Set in Glasgow and starring up-and-coming new actress Mirren Mack alongside Line of Duty’s Martin Compston, The Nest highlights many of the issues facing couples who opt for surrogacy when trying to have a family of their own.

Sarah Wood-Heath, who specialises in family law at national law firm Clarke Willmott LLP, takes a look at some of these issues and explains the complexities.

Finding a surrogate

In the UK, whilst surrogacy is not illegal it is heavily restricted. It is an offence to advertise that you are a surrogate or that you are looking for a surrogate. This makes it very difficult for families to find someone outside of their own circle who is prepared to go through the process for them. There are charities who work with surrogates and assist in introducing families, although the number of intended parents often far outweighs the number of surrogates.

As a result, it is often the case that intended parents will proceed with a surrogate who is a close friend or family member. The reason being is that it is a relationship built on trust, so having an established relationship already assists in the parties feeling comfortable with one another and being able to effectively communicate throughout the process.

The Nest highlighted, however, the strain this can put on friends and family members and the impact it has on their own immediate families. The relationship between intended parents and surrogates may be incredibly strong but it is important for both sides to understand that there will be difficult moments and it is a huge responsibility for both parties to take on.

Surrogacy abroad

Many UK couples find themselves looking at overseas options for a couple of reasons. One reason is if it is not possible to find a surrogate in the UK. Some states in the US are considered the gold standard when it comes to surrogacy, although there are other destinations such as Canada which are also popular. These destinations can be expensive and tend to be restrictive to many couples due to the costs involved.

There are less regulated countries which offer treatment for less, as we saw in The Nest with the main characters travelling to Ukraine to complete the artificial insemination of their surrogate.

The more lenient restrictions abroad can be another pull for couples. Clinics in the UK can sometimes refuse treatment on an ethical basis if the parties are deemed unsuitable e.g. because of their age or emotional readiness.

Going abroad is not for everyone and a lot of UK couples decide against it as they want their surrogate to be close by so they can themselves be part of the pregnancy which they have waited so long for. There is also the added complication of travelling back to the UK once the baby is born.

The lenient restrictions are also a worry for some, and for good reason. A lot of clinics in other jurisdictions don’t have the same checks and balances in place and this can lead to more heartache, as we saw in The Nest.

Intended parents’ rights at birth

As the law stands the surrogate is the child’s legal parent at birth (and her legal partner is the other legal parent) until a parental order has been made. Any surrogacy agreements made before the birth are not actually legally binding. This area of the law leads to a lot of stress and uncertainty for intended parents and also the surrogate.

In The Nest we saw how this has an emotional impact on all involved when the surrogate Kaya faced the decision of handing over rights to the intended parents or keeping the baby herself. When the case went to court the judge made her decision based on the best interests of the baby.

Proposed law reform

The proposed reform of the law which is currently in consultation with the Law Commission proposes a change to the way arrangements take place in the UK and could put a stop to some of the issues we saw in the programme.

The reform would see an established pathway where intended parents can be the legal parents upon birth taking away any uncertainty when the child is born.

The changes may also assist in more openness for those wishing to be a surrogate and those looking to find one. There would be established bodies who would facilitate and manage the arrangement to ensure all legal and ethical guidelines are adhered to.

In summary, the show highlighted the vulnerability of all the parties involved and how the long and painful journey of infertility can often cloud decisions. The desperation couples feel when trying and struggling to start a family was portrayed vividly.

The way the law is set up in the UK can drive people to take risky steps they perhaps otherwise would not. I welcome the plans for reform but even with these changes, surrogacy is still one of the biggest relationships of trust to enter into.

Having said this, it is also a wonderful and life-changing experience and can be some people’s only hope of having a family of their own.

Family lawyers can help people navigate the process and remain as transparent as possible throughout, so I would encourage anyone thinking of surrogacy to consult with an expert who can offer advice, guidance and often emotional support too.

Sarah Wood-Heath is a family lawyer at Clarke Willmott LLP, which has offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

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