Top of the Lake may sink as a procedural, but look beneath the surface

There's a moment in the final episode of this second series of Jane Campion's 'Top of the Lake' where Nicole Kidman's character Julia reminds Elizabeth Moss's character Robin, a policewoman and our protagonist, that she, Julia, is the 'real mother' of Mary (Alice Englert), the troubled and endangered young woman at the centre of the drama. Mary is adopted: Julia raised her, whereas Robin merely gestated her. An argument about exactly what it means to be a mother is not only important in the relationship between Robin and Julia: it is key to the main plot of the drama.

A body has been found washed up on a Sydney beach, and is discovered to be that of a Thai woman working in one of Sydney's legal brothels. The dead woman was pregnant when she died, but the baby is not genetically related to her; episode 2 ends with Robin's realisation that the dead woman was acting as a surrogate. What follows is a story that weaves together the rather murky worlds of the legalised sex trade and commercial surrogacy, which is illegal under New South Wales law.

Now, it's worth interjecting at this stage with the observation that, if there's one thing we learn from Top of the Lake, it's that Australian police have some very sloppy procedures and conflict-of-interest regulations. Gwendoline Christie plays Miranda, with whom Robin is partnered in the investigation; Miranda is not only having an affair with her boss, but is also trying to have a baby by surrogacy with him. Police officers investigating a case that straddles the boundary between legal and illegal surrogacy, at the behest of a commanding officer with whom they are trying to start a family by means of a legally-iffy service? Is there no oversight here? At the same time, via Puss, the none-more-sleazy pimp played by David Dencik, who has something to do with the illegal surrogacy racket and with whom Mary is besotted, the story is also very personal for Robin – just as in the first series. Again: should she really be working on this case?

Admittedly, the implausibilities of this series (or what one hopes are implausibilities, for the sake of policing standards in Australia) ought not to detain us too long. For there are deep and troubling questions that the series raises.

Return for a moment to Julia's barb towards Robin about being Mary's real mother. What is it to be a 'real' mother? Campion's writing and directing is designed to make us sympathetic to the idea that Robin has at least some kind of motherhood relationship with her biological offspring, and therefore she has rights and interests of some sort in Mary-qua-daughter. Why should this be, though? She had nothing to do with Mary's upbringing; on that front, Julia is the mother. Do genetics matter? Well, maybe – but we learn that Mary was conceived in rape; and so if a genetic relationship is what makes someone a parent in the morally rich sense, we would presumably have to accept that the rapist is just as much the father as Robin is the mother, with all the attendant rights. That seems a touch hard to swallow.

What's left to underpin motherhood is gestation. But if gestation is the key to 'full' motherhood, what are we to say about the Thai women in the brothel acting as surrogates for middle-class Aussies? Australian law – and English law, for that matter – treats the gestatrix as the mother, and surrogacy contracts are not enforceable. If gestation is what ties Robin to Mary (and what is missing between Julia and Mary), then we have to conclude that the Thai women are the real mothers of the children they are carrying, and the commissioning couples are irrelevant – irrelevant dupes, in fact, since the contracts giving them the rights to the children are not enforceable.

Maybe the commissioning couples are parents because they tick two of three boxes: they've not gestated any children, but they provided DNA, and will provide a home. Is that how we decide that someone's a mother? Are all three equally important? If not, what's the scale by which we should compare them? (And what, while we’re at it, makes someone a father? There's only two boxes that they could ever tick, so what happens if two men tick one each? In Mary's case, one box is ticked by Robin's rapist, and the other by Pyke, the man who raised her. They can't have equal claim to fatherhood, can they? And what about adoptive parents, whom we do frequently take as 'real' parents?)

Run for a moment with the idea that the mother is someone who ticks two out of three boxes. Robin, who provided DNA and a womb, is Mary's mother; Julia, who brought Mary up, isn't. Someone commissioning surrogacy ticks the DNA and the upbringing boxes. Arguably, that strengthens the moral case for surrogates to be paid – paid, that is, more than the 'reasonable expenses' permitted under Australian law – since they are providing a service in the form of reproductive labour rather than pursuing any familial ends of their own. In the series, the surrogates are prostitutes, and are paid for providing sexual labour: isn't there a parallel here, such that they should get a wage for their reproductive labour? In the final episode, for all his faults, Puss provides a kind of moral focus on this matter; to Campion's credit, we're forced to admit that, loathsome as he is, he might sometimes have a point.

A bog-standard libertarian response would be that this contributes to the argument for the legalisation of commercial surrogacy. The surrogates could then be paid legitimately, and the commissioners would be protected. But, as with many libertarian fantasies, this just doesn't stand scrutiny. For one thing, it wouldn't tell us whom we should treat as a mother; the problem of what the law should say on this won't go away. Simply removing prohibitions without putting regulations in their place won't get us far either, the absence of regulation being a recipe for, not a guard against, interminable disputes and exploitation. Legalised sex work provides plenty of examples of the way that legalisation and deregulation do not magically make everything OK, and trade on and perpetuate the subordination of women as a class. Mary is horribly manipulated – the legality of what Puss makes her think she wants to do is hardly a defence – and no one can possibly believe that the Thai women get to keep all of what they earn: they wouldn't be pretending to be students if everything was groovy. If legalisation doesn't clean up the grubby corners of the sex trade, what are the chances that it would clean up the grubby corners of surrogacy?

Finally, one has to wonder about the wider context of all this. Legal and moral problems arising from surrogacy would evaporate if we accepted that parenthood is complicated, but that it requires neither genes or gestation. If an adopted parent can be someone's 'real' parent – and they can – then there are many ways to have one's own child and to become a parent in the full sense of the word without needing surrogacy services (or, for that matter, IVF) at all; and there is correspondingly less reason for them to be made available.

So, then. Julia or Robin; Thai prostitutes trying to escape poverty, or wealthy Australians who think that they have a right to genetic offspring. Who are the real mothers in all this?