Surrogacy in the UK
To understand why it is necessary to put a Will in place as part of the surrogacy process, it is important to understand the legal framework of surrogacy. You can find more information here about the surrogacy process and English law. The complex part of surrogacy in the UK relates to parental rights.
Under English and Welsh law, the surrogate is the legal mother of the child at birth, irrespective of who the intended parents are or if the child is biologically hers. If the surrogate is married or in a civil partnership, her spouse or civil partner could become the second legal parent unless it is found that consent was not gained from the spouse of civil partner, i.e. they had separated or were estranged, and consent was either not given or unable to be gained. To gain parental rights, the intended parents will need to go through the Parental Order process, described in the article linked above. Once granted by the court, a Parental Order will transfer legal parenthood to the intended parents. However, with ever-increasing delays in the court process, it can be months after the birth of the child that the legal parenthood is transferred. It is during this period a Will can be especially vital. However, there are evidently risks associated with the pregnancy period also, meaning that it would be advisable to have a Will in place even before the embryo transfer.
Importance of Wills for Intended Parents
- Appointing a guardian: Deciding who will take care of and provide for the child in the event of a parent’s death or incapacity is one of the most important decisions a parent can make. A guardian will take the role of parent after they have died and make parental decisions for those children thereafter. If you are undertaking an international surrogacy journey, this should align with the foreign surrogacy agreement and comply with the laws in that country.
- Appointing executors: The executors of a Will are responsible for handling the estate of the deceased, this includes any money being held in a trust for the child until they are at the age of contingency (the age they inherit the money). It is important for the executors to be considered carefully in relation to any guardians, as the guardians are responsible for decisions around the children’s upbringing; any financial decisions based on the guardian’s decisions are left for the executors.
- Leaving assets to the child: If an IP dies without a Will, then their estate will be distributed according to a statutory order known as the intestacy rules. When dealing with children, the intestacy rules pass an estate to ‘issue’. For a non-biological parent without a parental order, their child born via surrogacy would not inherit under the intestacy rules.
- Recording legal wishes: The IPs will likely have wishes regarding how the child will be raised, such as education, religion, healthcare, etc., and these wishes should be outlined in a letter of wishes. In particular, modern families may have specific views regarding how their children will be educated on sexuality and gender.
- Ensuring the surrogate’s expenses are paid: During surrogacy, payments to the surrogate mother are limited to ‘reasonable expenses’ in the UK. They cover things such as loss of earnings, medical costs, travel, and maternity costs. They do not include compensation or general living costs. Payment of these reasonable expenses should be included in the IP’s Wills to ensure that the surrogate is still paid in the event of death. In instances where families are on an international surrogacy journey, the laws in the country their surrogate is in may be different, and surrogates may be paid compensation for the process, in these situations, payment of these fees should be addressed in the IP’s Wills.
Importance of Wills for Surrogates
- Appointing the IPs as guardians: This ensures that in the event of the surrogate’s death or incapacity before the parental order is granted, the IPs will be the child’s legal guardians.
- Protecting their own family: The surrogate may want to address in her Will that the intended beneficiaries would solely be their own family (i.e. their own children) and not the child they are carrying for the IPs.
- Parental Order: A surrogate can include their wishes for a parental order to be granted to the IPs in their Will. Therefore, if they die before it is granted, the surrogate’s Will can be used to support the IPs application for the order.
Surrogacy is about planning for the future, but that planning shouldn’t stop once the baby has arrived. A Will allows you to make sure your child is protected no matter what. It gives you control over what happens if the unexpected occurs and ensures your wishes shape your family’s future. A Will isn’t about expecting the worst, its about giving you and your family peace of mind, so you can focus on what matters most, lovingly raising the newest addition to your family.
How we can help
If you are going through the surrogacy process it is vital to put a Will in place by instructing a solicitor who has experience in dealing with surrogacy specific Wills. To cover the issues mentioned above, specific clauses need to be included in a Will, and they need to be worded in a way that covers children born via surrogacy. At Hanne & Co we have modern families law and LGBT specialist departments. If you would like to discuss Wills during the surrogacy process, please contact Emily Robertson
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