When planning a surrogacy there are lots of practical and legal steps you must follow before the child is born. One of these steps is for the intended parents and surrogate to make or amend their existing Will so that they and the child are protected in the event of a death.
The current position in the UK under surrogacy law is that the woman who gives birth to the child, irrespective of biological relation, is the legal mother of the child. This means the surrogate mother will have parental responsibility for the child. The law also states that the baby’s legal father is the spouse of the surrogate, this is unless it can be proven that he didn’t consent to the surrogacy.
Only after the baby has been born can the intended parents apply to the Court for a Parental Order to change this position. The surrogate will hold parental responsibility for the child right up until the intended parents are appointed as the legal parents. It’s important to note that these orders are subject to certain conditions being met and that even though many Parental Orders are granted by the Court following surrogacy, the process can take many months to complete. This means that between the time of the birth and the Court order being granted, the child is still legally tied to the surrogate, leaving both the surrogate and intended parents vulnerable in the event of a death.
Surrogacy Wills
A Will is a document that lets you choose:
- Who deals with your estate;
- How your estate is inherited; and
- Who may look after your children if you die before they turn 18.
If a Will is not put in place before a Parental Order Is made, the child will automatically inherit from the surrogate’s estate, this may not be the surrogate’s wishes. To stop this from happening, certain clauses need to be included in the intended parent’s Wills and also the surrogate’s Will. These provisions are unique to each individual and therefore legal advice is recommended.
Provision for guardianship of the child before a Parental Order is in place can be made within a Will. This will also ensure the child will be cared for by the intended parents should something happen to the surrogate mother during labour or before the Parental Order is obtained.
It’s advisable that all parties involved in the surrogacy process should either make or update their Will.
How we can help
Nadia Faki is a Partner in our Wills and Probate team, specialising in Wills, Inheritance Tax planning, administration of estates, grants of Probate, Powers of Attorney and Trust creation and administration.
If you would like further advice in relation to Surrogacy Wills or any related topics, please contact Nadia or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
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