Why do I need a will for a surrogacy arrangement?

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Putting a will in place is on many of our to-do lists. With busy lives and various responsibilities, making a will usually ends up getting overlooked and becomes as a task we ‘should do’ but just haven’t got round to sorting.  It is a good idea for anyone with children or assets to make a will (to make sure that things are well-managed if they die), but for those entering into a surrogacy arrangement making a will is particularly important, which is why it is routinely recommended as part of the process of a surrogacy.  Why?

Whether you are entering into a surrogacy agreement with a friend or family member, or someone you have been matched with for the purposes of surrogacy, a will deals with what will happen if you die.  In most families, the law gives spouses and children some basic protection if you die without a will, but in surrogacy cases those protections don’t work.  That is because, under UK law, the intended parent(s) are not automatically recognised as the legal parents of children born through surrogacy. The surrogate is the legal mother until parental rights are reassigned by virtue of the parental order, meaning that there is a period of ‘legal limbo’ for the child before the court order is made. If one of the adults involved in a surrogacy arrangement dies unexpectedly before a parental order is granted, that means that the default rules will benefit the wrong people.

However, that can be resolved with a properly drafted will.  A will confirms your wishes and how you would like your estate (money and property) to be shared between your beneficiaries (for example family, friends and charities etc.) and also who you wish to appoint as the guardian(s) of any of your children.

Intended parents should put a will in place before their child’s birth appointing guardians who will care for their child in the event of their death. They should also provide for their child by giving them the right of inheritance, as there is a risk that their child will not be left with anything if there isn’t a provision for this. The surrogate may also want the security that her expenses/compensation are covered in the event of either or both of the intended parent’s unexpected death, and this can be provided for too.

A surrogate (and her spouse) should appoint the intended parents as the legal guardians of the child and make clear that the surrogate child should not inherit a share of their assets alongside their own children.  Without this, the surrogate’s children could lose a portion of their inheritance if she dies during the surrogacy process.

Good wills for surrogacy will also deal with the longer term, so there is no need to update your wills once the surrogacy process is complete.

We work with many families through surrogacy, preparing wills as well as advising on the other legal aspects of the surrogacy process.  If you would like our assistance in drawing up wills, we would be more than happy to help prepare these for you. Please do get in touch and we can talk you through our costs and next steps.

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