The surrogacy journey typically involves a great deal of excitement, paperwork, numerous appointments, and sleepless nights but one thing often not on the radar is making or updating a will. It may not be the most glamorous part of planning for a new arrival, but it is one of the most important – protecting your family both as a surrogate and the intended parents.
Surrogacy creates a unique legal situation. For a period after birth, the law and reality are not quite in step. While everyone knows who Mum and Dad are in practice, the law takes a little longer to catch up. Until the court grants a Parental Order, the legal position is rather different from the family you are already becoming.
A well-drafted will helps bridge that gap and provides reassurance that, whatever happens, the right people are protected.
Why intended parents should make a will
Until a Parental Order is made, you are not yet the child’s legal parents, even though you have probably spent months preparing for their arrival (and assembling furniture with mysterious leftover screws). Having a properly drafted will helps ensure that your wishes are respected if the unexpected happens.
Making provision for your child
Not unsurprisingly, the intestacy rules are not designed with surrogacy in mind. If you die without a will before a Parental Order is granted, your child may not automatically inherit from your estate in the way you would expect. A will allows you to make clear provision for your child.
Caring for your child
Although the court will always make decisions based on the child’s best interests, a will enables you to record your wishes regarding who should care for your child should the worst happen before legal parenthood has been transferred. This can help the surrogate to determine what should happen. Providing clear guidance can help avoid uncertainty and unnecessary disputes at an already difficult time.
Continuing the surrogacy arrangement
If an intended parent dies during the pregnancy, there may still be agreed expenses to be paid under the surrogacy arrangement. A carefully prepared will can authorise your executors to continue meeting those commitments, providing financial certainty for everyone involved.
Why surrogates should make a will
This is the part that often surprises people.
When a baby is born through a surrogacy arrangement in England and Wales, the surrogate is the child’s legal mother. If she is married or in a civil partnership, her spouse or civil partner may also have legal parenthood. This applies even if the intended mother or father are the egg/sperm donor and remains the case until the court makes a Parental Order. Whilst everyone involved understands that the baby belongs with the intended parents, the law needs a little gentle encouragement to catch up.
Protecting your own family
If you die without a will before the Parental Order is made, the intestacy rules could produce results that nobody intended. A professionally drafted will helps ensure your estate passes to the people you want to benefit—typically your own children and family, rather than the baby you consider as someone else’s. Unintended inheritance issues could easily arise.
Recording your wishes
If the unexpected happens before legal parenthood is transferred, your will can clearly record your wishes that the intended parents should care for the child. Although the court will always decide matters in the child’s best interests, setting out your intentions can provide valuable guidance and help minimise uncertainty.
Don’t leave it to chance
Surrogacy is anything but ordinary, so it deserves more than an off-the-shelf will downloaded over a cup of tea. Having wills prepared before embryo transfer (or as early as possible during the pregnancy) gives everyone greater certainty and peace of mind. It is a relatively simple step that can make an enormous difference if life takes an unexpected turn. After all, the aim is that your wills are never needed for these reasons. Like umbrellas, they’re much better to have quietly sitting in the background than wishing you’d bought one after the rain starts.
If you’re embarking on a surrogacy journey, Miriam Spero in our private client department would be delighted to help you put the right legal protections in place, leaving you free to concentrate on the exciting part: welcoming your newest family member. You can also call on us +44 (0)20 7851 0100.