The BBC aired the second series of its chilling antipodean drama series, Top of the Lake: China Girl, this summer. The star studded cast, which included Elizabeth Moss and Nicole Kidman, followed the main character, Detective Robin Griffin (played by Moss) connect with her estranged daughter, Mary, who had been adopted at birth. Robin discovers that Mary, aged 17, is dating a 41 year old married man- the complicated and eccentric, Alexander “Puss”. As the story unravels (spoiler alter) it is discovered that Puss is instrumental to the running of an illegal surrogacy network involving Thai prostitutes from the brothel situated below his flat.
Mary, oblivious to the surrogacy network, is utterly infatuated with Puss so much so that she readily accepts his proposal of marriage, despite her age and her adopted parents’ deep concerns about Puss.
What if this programme was real?
The surrogacy ring
Surrogacy is the process by which a child is carried through pregnancy by another woman. The intention is that, at birth, the child and parental responsibility for the child will be transferred to the commissioning parent/s and that they will become the legal parent/s for the child.
In the programme, couples desperate to have children paid an agent thousands of dollars in an illegal arrangement, so that Thai prostitutes would carry their children to birth. Had this arrangement taken place in England and Wales, it would also be illegal. This is because the law prohibits commercial arrangements for surrogacy in the UK. A court must be satisfied that no money or other benefit has been exchanged for any part of the surrogacy arrangement. The only money that can be exchanged is for expenses reasonably incurred.
These restrictions in England and Wales have resulted in a low number of women willing to act as a surrogate in this jurisdiction. The result is that many couples look for other ways to arrange a surrogate, and there is a risk that people could turn to these illegal arrangements without realising the seriousness of what they are getting into. More commonly, however, couples often look abroad to find surrogates in countries that have less restrictive regulatory regimes, typically certain US states where commercial surrogacy arrangements are not illegal.
Towards the end of the series [again spoiler alert] Puss arranges for the pregnant Thai surrogates to fly home to Thailand, without the commissioning parents’ knowledge, where they will give birth to the children they are carrying.
If the surrogacy arrangement was taking place under the law of England and Wales the surrogate would be treated as the child’s legal mother until the situation is changed through an order of the court. It is not possible for a surrogate to simply give up parental responsibility. The commissioning parent/s are required to take active steps to legally transfer parents responsibility on to them. This means that the Thai surrogates would not be breaking the law to return home to give birth and keep the children in Thailand, as they are treated as the children’s parents.
Given the complex nature of surrogacy law, we would strongly urge anyone considering a surrogacy arrangement to seek legal advice as early as possible.
Mary and Puss’ plan to marry
By episode 3, viewers learn that Mary (aged 17) and Puss plan to marry. Puss makes his intentions known to Mary’s adopted parents Pyke and Julia, during an awkward dinner party. Pyke and Julia are extremely unhappy and investigations lead them to learn that Puss is already married.
If Mary and Puss lived in England, Wales and Northern Ireland it would be illegal for Mary to marry under the age of 18 without parental consent. In Scotland, however, Mary would be free to marry with or without parental consent from the age of 16.
If Mary had waited until she was 18 to marry Puss, or married at 17 in Scotland, the marriage would still be illegal because Puss is already married. This would be considered a polygamous marriage and Puss, as the already married person, would be guilty of committing bigamy, the offence of marrying while already being married to someone else.