Where there’s a surrogacy arrangement, there’s a Will

2 August 2016

It has long been said that it takes a village to raise a child.  It can now also be said that it takes a multi-disciplinary legal team to raise a child through a surrogacy arrangement.

Many find entering into a surrogacy arrangement in England and Wales  difficult due to the reported shortage of surrogates and the fact that surrogacy agreements or purported contracts are not enforceable here.  As a result of this, many hopeful parents go overseas to find a surrogate - often to the USA or Canada.  Wherever you go, taking specialist legal advice both here and abroad is important.

Most commonly, parents take advice from a fertility or family lawyer in the country where the surrogacy arrangement is taking place to prepare the surrogacy contract.  In some cases this lawyer will assist with the applications for Declaratory Judgment (or similar pre-birth legal proceedings) to ensure they are recognised as the child’s legal parents when the child is born.  They may also need the help of an immigration lawyer to make sure they can bring their child back to the UK and a family lawyer here to assist with the application for a parental order which has the effect of recognising them as their child’s legal parents here.

Less obviously the parents may also need the help of a private client lawyer to draw up new Wills for them.

It is always a good idea anyway to review your Will when a life-changing event, such as a birth or marriage happens.  However, a new Will is likely to be compulsory when entering into a surrogacy agreement.

Most surrogacy arrangements involve the parents and the surrogate mother signing a surrogacy contract, which will clearly set out the obligations on both parties.  In our experience, more of these contracts include a requirement that the parents make new Wills before the process starts.  The new Will must deal with certain matters to ensure that the surrogate mother and the child are protected.

In order to comply with many of the foreign surrogacy contracts we have seen recently, the Will must include a number of special clauses, which are set out in more detail below.

Appointing a guardian

As well as dealing with your property and money, a Will can be used to appoint a guardian for your children in the event they are left without a parent.  The guardian will have parental responsibility for the children.  This is very common and not specific to surrogacy.

A clause appointing a guardian will almost always be a specific requirement of a surrogacy contract.  This is to make sure that there is someone who can look after the child if both of the prospective parents die before he or she is born or before their legal status has been formally recognised by the English or Welsh court by the making of a parental order.

Where there is a proposed surrogacy arrangement, the Will should also provide for the guardian to have all of the funds they need, to carry out their duties, paid for from the parents’ estate.  This will include the guardian’s expenses such as travelling overseas to collect the child and any legal fees.
In more straightforward situations, for example when a couple have had a child naturally themselves, there is no legal requirement to even tell the guardian they have been appointed or to get them to sign anything.  However, where there is a surrogacy arrangement, it is a good idea to ask the guardian to sign a letter confirming they consent to their appointment.  This will give additional comfort to those assisting with the surrogacy arrangement (for example the Agency abroad or the IVF clinic performing the embryo transfer) and also to the surrogate.

Enforcing the surrogacy contract

The Will should also deal with the risk of both parents dying after the contract has started but before it has finished.  The parents’ executors should be given express powers to fulfil any outstanding obligations or make payments due under the contract.  This will make life much easier for the surrogate and the child, if the worst should happen.

Definition of ‘children’

If your Will makes any reference to your ‘children’, for example when leaving property to your children or appointing a guardian for your children, it is important to be clear who your ‘children’ are.

If your Will is not crystal clear on this point, the general law is not particularly helpful in clearing the matter up.  Generally, ‘children’ will include legitimate, illegitimate and adopted children but will not include step children.  However, the exact definition can vary depending on the individual circumstances and this can lead to arguments.

A child born by surrogacy will not be recognised as the legal child of his or her parents until a parental order has been made.  It is better to be safe than sorry and so, if you are about to enter into a surrogacy agreement, you should make sure your future child is explicitly included in your Will from the moment of conception.  This means that making sure the word ‘children’ is carefully defined.

Contact with family members, education etc

You and your partner may have strong views about how you would like your child to be raised if you are both not around.  You may want to make sure that they have regular contact with your surviving family.  You may want to make sure that they attend a certain type of school.

You can include this detail in a side letter to your Will.  Although this letter would not be legally-binding, it places a strong moral obligation on your guardian to carry out your wishes.  A big advantage of doing it this way, rather than including these things in your Will, is that after death, your Will becomes a public document.  You may not want this sort of personal information to be available to anyone to see.

In fact, given that your Will becomes a public document, you may want to think about making a new Will as soon as you have obtained your parental order.  This is because the special clauses required by your surrogacy contract could make it clear that your child was born through a surrogacy arrangement.  You may not want this information to become public and so you may wish to remove it from your Will once it is no longer needed.

Further information

Surrogacy can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.

If you would like to speak to one of our specialist lawyers, please contact Connie Atkinson for family law advice and our Private Client team for advice on Wills.

You may also be interested in reading our Frequently Asked Questions or previous blogs on international surrogacy, including:

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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