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Surrogacy, the process where a woman carries and delivers a child for another person or couple, is a complex journey surrounded by emotional, legal, and ethical considerations. One critical aspect often overlooked in the surrogacy process is ensuring those involved have made appropriate consideration within their own wills. It is imperative that any estate planning outlines the wishes and protections for both the surrogate and the intended parents in the event of death or incapacity.
We have discussed below some of the key considerations that should be contemplated where there is a surrogacy arrangement in order to safeguard the interests of all parties involved.
For the surrogate
- Financial Considerations: Under UK law, the surrogate is the legal mother of the child at birth, and if she is married or in a civil partnership, her spouse or civil partner is the second parent until such a time as a parental order is made. The surrogate should, therefore, include the exclusion of the unborn child as a beneficiary of their estate to cover the period from birth until the parental order is obtained by the intended parents.
Whilst commercial surrogacy arrangements are illegal in the UK, surrogates can be reimbursed for reasonable expenses. Therefore, the will should address how these financial arrangements will be handled in the event of death. This includes any outstanding payments and the distribution of these funds to her intended beneficiaries.
- Guardianship Considerations: If the surrogate has children of her own, her will should specify who will assume guardianship of her children if something happens to her and anyone else with parental responsibility. This ensures that her children’s care and upbringing are secure and aligned with her wishes. These should take into consideration her own children and the surrogate child, again to cover the period from birth until the parental order is obtained by the intended parents.
For the intended parents
- Parental Orders: Intended parents in the UK must apply for a parental order to become the legal parents of the child born through surrogacy. The intended parents’ will should outline their custodial intentions and ensure that the process for obtaining a parental order is clearly understood and followed.
- Financial Considerations: Intended parents should include provisions to ensure the financial well-being of the surrogate child. This may involve setting up a trust fund, life insurance policies, and other financial arrangements to guarantee the child’s needs are met regardless of the parents’ ability to care for them.
- Guardianship Considerations: Intended parents should appoint a guardian who will take custody of the surrogate child if both parents are unable to care for them. This appointment provides clarity and stability for the child’s future.
Joint considerations
- Legal Framework: It would be advantageous for both parties to work with legal professionals who specialise in surrogacy to ensure the wills are compliant with UK laws including the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. This legal guidance is vital to ensure the correct legal documents are in place to prevent any potential legal challenges.
- Communication and Transparency: Open and clear communication between the surrogate and intended parents is essential. Both parties should discuss their intentions for their wills to ensure mutual understanding and agreement. This transparency helps to build trust and avoid conflict.
- Updating Wills: Surrogacy Wills should be reviewed and updated regularly to reflect any changes in circumstances, such as new health conditions, changes in financial status, or the addition of new family members. Regular updates ensure the wills remain relevant and effective.
- Psychological and Emotional Support: Surrogacy can be emotionally taxing for all parties involved. Access to counselling and support services can help surrogates and intended parents navigate the psychological aspects of the journey, ensuring they are emotionally prepared for any eventualities.
Conclusion
Creating a will which effectively considers the surrogacy arrangement is a crucial step in the surrogacy process as it provides legal protection and peace of mind for both the surrogate and the intended parents.
By addressing these key considerations, all parties can ensure, as best they can, that their rights and intentions are clearly articulated and safeguarded in the event of death.
If you are thinking about making a surrogacy arrangement or becoming a surrogate, please consider this article from our Family team on current surrogacy law and incoming reforms.
Please do get in touch with Gemma Shepherd or Laura Bond if you would like to discuss estate planning in relation to surrogacy provisions and how we can help your family through your surrogacy journey.
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