Wills: Important Advice for Anyone Considering Surrogacy

At Else Solicitors we frequently come across complex family situations that need detailed consideration when preparing and amending Wills. One such example is surrogacy, both in respect of the surrogate mother (and her family), and the intended parents. In this article we outline some important points in relation to surrogacy and highlight the importance of seeking professional legal advice.

Within the UK there are two types of surrogacy that can be undertaken, gestational surrogacy (also known as host surrogacy) and traditional surrogacy. During a gestational surrogacy the surrogate carries a baby that has no genetic link to themselves. Whereas, with a traditional surrogacy the surrogate carries a baby conceived using their eggs and a donor’s sperm.

Irrespective of which type of surrogacy is used, the woman who gives birth to that baby is the legal mother, even in cases of gestational surrogacy where she is biologically unrelated to the child. The law further states that the baby’s father or “second parent” is the spouse of the surrogate and if the surrogate is not married or in a civil partnership the situation is much more complicated and the baby may have no ‘legal’ father. Only after a surrogate mother has given birth can the intended parents make an application to the family court to become legal parents of the baby.

In order to help manage a smooth surrogacy and handover, the intended parents and surrogate mother usually draw up and agree a surrogacy contract. The surrogacy contract dictates when the baby will be handed over as well as how the pregnancy is to be managed. Surrogacy contracts are currently not enforceable under UK law, even if the parties have agreed terms, signed the written contract and paid for the surrogate’s pregnancy expenses. The surrogate holds legal and parental responsibility over the child of the surrogacy; up until the point the intended parents are appointed as the legal parents, the surrogate is entitled to change their mind and revoke the surrogacy at any time.

Whilst surrogacy in the UK is legal it is illegal to pay a surrogate to carry a baby. ‘Reasonable expenses’ are permissible, and most couples choose to give a ‘gift’ to their surrogates upon the birth of the baby. Surrogates should expect to have all their pregnancy expenses taken care of by the intended parents – these expenses include, but are not limited to maternity clothes, pregnancy supplements and travel expenses. If a surrogate does not already have a Will prior to entering the surrogacy she will be able to claim the cost of the Will from the intended parents as a reasonable expense. There is no set figure, however the family court is likely to investigate a case where any amount over £20,000.00 has changed hands.

Another consideration is the chance (albeit slight) that the surrogate mother will die during gestation or labour. Most surrogacy contracts contain clauses requiring the surrogate and her husband/partner (if she has one) to accept the risk of her death and to agree to release the intended parents from liability of her death if death occurs. In return for such agreement intended parents sometimes choose to purchase life insurance to provide financial protection for the surrogate’s family in the event of her death.

When preparing a Will or setting up a lifetime trust it is important to ensure that any express or implied references concerning children within the Will or trust document have the meaning that the testator or settler intends. Should a surrogate die intestate (with no Will) during childbirth, parental responsibility for that baby would revert to the surrogate’s spouse if she has one, and if she does not then responsibility could fall to the parents of the surrogate. This is a problem for the intended parents as even being the ‘legal’ parent of the child (as it is possible the intended father might be) is not the same as having parental responsibility for them. Surrogacy contracts are not enforceable under UK law, even though they follow the structure and format of a traditional contract and money has often changed hands in the form of reasonable expenses.

A valid Will containing a guardianship clause drafted alongside a letter of wishes would help ensure the continuation of the surrogacy process even after the surrogate has died. A guardianship clause would give the option for the surrogate to decide who they want the surrogacy baby to be entrusted to, either her own family or the intended parents. For example, the guardianship clause could specify that guardianship of the child should be granted to the intended parents and the letter of wishes could specify that the surrogate wished for the intended parents to proceed with the application to become legal parents.

A letter of wish sits alongside the Will and affords the surrogate the opportunity to explain the decision behind their actions and is a way for the surrogate to have a posthumous voice. This is useful in situations where members of the surrogate’s family may not agree with the surrogacy. These wishes can be recorded in a separate letter which can then be changed and kept up to date without having to change the surrogate’s Will.

It is also vital that the intended parents review and update their Wills and any letters of wishes relating to their pensions. They will need to ensure that the child is properly looked after and provided for, without any unintended consequences which might result in the surrogate inheriting.

The areas highlighted above are just a few of the considerations that need to be addressed for anybody involved in surrogacy. They also show the importance of getting the right legal expertise and advice. Else Solicitors have a dedicated team of professional specialists in this area. For an informal chat then please contact Kathryn Caple, Head of Wills and Probate at Else Solicitors, on 01283 526230 or kathryn.caple@elselaw.co.uk.

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