More and more people these days are choosing the surrogacy route to have children but there are some important issues to consider both for the intended parents and the surrogate herself, in terms of their estate planning during the pregnancy and shortly after the birth before the legal parenthood passes over.
The Laws of Intestacy
In a surrogacy arrangement the laws of intestacy state that until the parental or adoption order is in place then the surrogate mother will initially be treated as the child’s legal parent, and if married, then the husband will also be given automatic status as the legal father. The child therefore would be entitled to a share of their estate but miss out on any inheritance from the intended parent’s estate(s).
This rule will still apply in respect of the child’s parentage even if he or she is born in another destination where the surrogate mother is not deemed as a parent under local law and where the intended parent is named on the birth certificate, since English law operates entirely independently and will apply its own rules.
To extinguish the surrogate’s parental status and reassign it fully and permanently to the intended parent(s) under UK law, it is necessary to apply for either a parental order (the court order specifically designed to resolve the legal position following a surrogacy arrangement) or an adoption order (which may be possible if a parental order is not available). However, this cannot be done until after the birth.
What can be done for the intended parents?
It is advisable that the intended parent(s) establish a Will(s) in which they either specifically name their child or add appropriate provision for “surrogate children”. Care needs to be taken to use the correct wording as simply using the statement “children” within a Will, covers only biological and adopted children.
The use of a Discretionary Trust would also be advantageous with a letter of wishes to the trustees asking that they should hold the estate for the benefit of the child in question as soon as it is born.
What can be done to protect the surrogate?
Wills are also an appropriate place to make provision for a surrogate’s expenses, in the event that one or both of the intended parents dies before birth to ensure that she is not out of pocket as a result of the arrangement. The surrogate should request that this is written into the intended parent(s) Will.
This act is very important because surrogacy agreements are not legally binding in the UK, meaning that a surrogate would have no way to secure and recover her agreed expenses in the event of the death (and therefore the goodwill) of the parents.
As with the intended parent(s), the surrogate should also consider establishing a Will specifically excluding the surrogate child from inheriting anything from her estate and making the intended new parent(s) guardians of the child so that this intention is clear in the event of the surrogates death. She could even go one step further and appoint the intended parents’ choice of reserve guardians for even more protection.
There are many things to consider when entering into a Surrogacy arrangement not least, the legal pitfalls of the child’s rights to inheritance, so for some families, Wills can be the key to bridging the gaps left by the law
This article was submitted to be published by Countrywide Tax & Trust Corporation Ltd as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.
