Wills, surrogacy and changes afoot
12 August 2024
Putting in place valid Wills for the surrogate and the intended parents is an essential part of the surrogacy process.
Surrogacy
In the UK, there are two types of surrogacy: gestational (or “host”) surrogacy and traditional surrogacy. With a gestational surrogacy, the surrogate carries a child that is not their biological child.
With a traditional surrogacy, the surrogate carries a child conceived with their own eggs and a donor’s sperm. In either case, where a child is born to a surrogate, the surrogate will be the child’s legal mother and, if she is married, her spouse will the child’s second parent, until such time as a parental order is made in favour of the intended parents. If she is unmarried, it is possible that the intended parent who is the sperm donor may be named as the child’s legal father, but this depends on a number of factors including whether the conception took place at a fertility clinic. This is because surrogacy agreements are not legally binding in the UK. Even if the surrogacy arrangement has taken place in another country and binding orders made in that jurisdictions, the orders will not be binding in the UK.
There have been recommendations made by the Law Commission to make changes to the existing law governing surrogacy arrangements, mostly concerning domestic surrogacy arrangements, but it does not appear that those changes will be a priority for the Government.
Surrogacy Wills
Obtaining parental orders can take several months, even years in some cases, and there is a risk that the surrogate dies before the parental order is obtained. If a surrogate dies without a valid Will during childbirth, parental responsibility for that child falls to her spouse (if any), and the child inherits under the intestacy rules.
We recommend the following steps:
- Appointing the intended parents as the child’s guardians in the surrogate’s Will.
2. Providing for the child in the intended parents’ Wills.
3. Excluding the child from benefit from the surrogate’s Will.
4. Providing for the surrogate’s reasonable expenses in the intended parents’ Wills.
The surrogate may wish to explain in a letter of wishes the thinking behind her becoming a surrogate. This is useful in cases where the surrogate’s family may not agree with the surrogacy.
The intended parents’ Wills may include clauses to show that the child was conceived through surrogacy. The intended parents may not want the surrogacy arrangement to be public knowledge. Since a Will becomes a public document once probate is granted, the intended parents may want to make new Wills once they have obtained the parental order so as remove any references to the surrogacy.
The Birketts view
Intended parents often go overseas to find a surrogate, due to a lack of surrogates in the UK and the fact that surrogacy agreements are not legally enforceable or binding in the UK. Intended parents need advice from an immigration lawyer to make sure they can bring their child back to the UK and from a family lawyer to assist with the application for a parental order. Those embarking upon the domestic process will also have a need for holistic legal advice spanning family law, employment law and private client (Wills, tax and trusts). Having carefully drafted Wills ensures the smoothness of the surrogacy process in the unfortunate event that a surrogate or one of the intended parents dies before the parental order is in place.
Our Family, Immigration, Employment and Private Client Teams at Birketts work closely together to provide a joined up, seamless Surrogacy service as part of our Modern Families service.
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Katherine Forster
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Jennifer Headon
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2024.