Planning for death when you’re making life – why you should make a will if you’re conceiving through assisted reproduction

The ugly fallout which results from the lack of a Will was made public earlier this year following the dispute between Prince’s surviving siblings after it was discovered that he did not leave a Will. It is always advisable to make and execute a Will as soon as you own any significant assets, but particularly when you decide to start a family.

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In the case of families conceiving through surrogacy this need is even more apparent.

The legal position at birth is that the surrogate will be treated as the child’s legal mother, and if she is married, her husband/wife will be treated as the other legal parent. This means that the intended parents have no legal relationship with the resulting child which creates a legal limbo period which is solved by applying for a parental order once the child has been born. A parental order can take several months to obtain, which means if the intended parents were to die before obtaining an order their surrogate born child would not be entitled to inherit from them. We therefore always advise intended parents (and equally, their surrogates), to think about how to deal with this awkward application of the law.

We work with many people planning and involved in UK surrogacy arrangements and have vast experience in drafting Wills tailored to parents who are conceiving through surrogacy. It is important in these cases to define the surrogate children in the correct way to ensure they will be sure to inherit from the intended parents.

Donor conception through a clinic

Similar issues arise in term of donor conception. If you conceive at a fertility clinic, using an egg or sperm donor, the Human Fertilisation and Embryology Authority will regulate how things work in terms of parenthood.

The woman who gives birth to the child will always be recognised as the legal mother however, if the couple is unmarried, who will be recognised as the other legal parent (whether that is the legal father or second legal parent) depends on which forms are signed at the clinic. As long as both parents complete and sign HFEA Forms WP and PP to nominate the non-birth parent then they will both be recognised as legal parents.

It is extremely important to follow this procedure carefully and there have been a large number of cases in which incorrect forms have meant that individual’s legal parentage has been put in jeopardy. The President of the Family Division has now found a way of correcting these mistakes but for parents in this position it is extremely important to ensure that specialist Wills are in place so that the donor conceived children are able to inherit from their rightful parents.

Known donation/co-parenting arrangements

The lines become even more blurred in cases of known gamete donation and co-parenting arrangements. It is not always clear who will be recognised as the child’s second legal parent and so the need to seek legal advice at the outset is of utmost importance.

Once again, one of the ways to ensure that the resulting child is able to be legally and financially linked to the correct individuals is through your Will. A carefully drafted Will will ensure that parents and donors are able to pass on their assets to their children how they wish. If they do not have a valid Will and the Intestacy Rules apply (which are the rules that determine how an estate is divided if an individual dies without a Will) their children may not be able to inherit automatically.

Guardianship

Wills are not just important to ensure that a child is financially cared for after your death. They can also be used to nominate the individual/s who will care for your child if you die before they reach the age of 18.

Provided you have parental responsibility for your child, the guardian/s you nominate will automatically receive the responsibility to make every day, practical decisions about your child if you were to die.

Difficulties can arise where children have been conceived by alternative means and so intended parents frequently do not have parental responsibility for their children. For example, if parents have had a children born through surrogacy it is unlikely that they will both have parental responsibility, and therefore any guardian they appoint will not receive this same responsibility on the death of that intended parent.

These issues need to be handled carefully, but provided a Will has been drafted with alternative methods of conception in mind, they should pre-empt any problems which may arise.

If you are interested in getting some Wills drafted to protect both you and your children’s position then please don’t hesitate to contact us on +44 (0)20 3701 5915.

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