Surrogacy & The Importance Of Making A Will

A child in general terms means the first generation of direct descendants of an individual. When a surrogate is involved in the birth of a child, the surrogate legally becomes the mother of the child born through surrogacy, and her name will be on the birth certificate. She then has Parental Responsibility for the child. If the surrogate was married at the time of implantation her husband will automatically become a legal parent and have Parental Responsibility, unless it can be proved that he did not consent to the surrogacy.

This position can be changed by the application for a Parental Order. This application must be made within six months of the birth. The lawful parents (as above) must consent to the Order.

Where this is obtained, the child is then treated in law as the child of those who have sought the Parental Order. This is required where the child has been carried by a woman who is not the intended mother. It should be noted that these Orders are subject to various conditions being met.

Section 54(1) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) provides “that on an application for a Parental Order by two people, a Parental Order provides for a child to be treated in law as the child of the applicants if:

1. the child has been carried by a woman who is not one of the applicants, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination, and
2. the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
3. the conditions set out in HFEA 2008, ss 54(2)–54(8) are satisfied”

It is therefore very important to consider Wills when considering surrogacy, equally as the Intended Parents and the Surrogate.

Surrogacy Wills

A Will is a document whereby you can choose who deals with your estate, who inherits your estate, and who may be able to look after any minor children should you pass away before they are eighteen.

When referring to who is to inherit your estate, it is important to be clear who this is to be. When a surrogacy has taken place certain clauses need to be included within the Will to ensure the child is included in the intended parents’ Wills, and not included in the surrogate parents’ Wills. However, provisions can be made to include them if required.

Within a Will, provision can also be made for the guardianship of such child until the Parental Order has been obtained to ensure that the child can be cared for by the intended parents, should something have happened to the surrogate during labour or before the Parental Order was granted.

It is advisable that Wills are made by all parties involved in the surrogacy process, especially those who have Parental Responsibility.

How we can help

If you would like to discuss the matters discussed in this article, please do not hesitate to contact Nadia Faki, Partner, or Emma Lewin, Associate, in our Wills & Probate team, who will be happy to discuss this further with you.

Please contact us on 0800 024 1976 or via our online enquiry form.

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