Wills and surrogacy: what you need to know

Jade Quirke, Senior associate in the Russell-Cooke Solicitors, family and children team. Annika Bell, Senior associate in the Russell-Cooke, private client team
Multiple Authors
4 min Read
Jade Quirke, Annika Bell

Planning a surrogacy arrangement is a project and there are lots of practical and legal steps to follow both before and after the child is born. One early important step is for the intended parent(s) and the surrogates to put specialist surrogacy wills in place or amend existing wills to ensure that in the event of an unexpected death they and the child are protected.

Legal parenthood position in surrogacy arrangements

Under UK surrogacy law the surrogate, as the person who gives birth to the child, is always treated as the legal mother. If she is married or in a civil partnership her spouse will automatically be the child’s second legal parent. This is the legal parenthood position irrespective of biology and what everyone intends, and it results in at least one of the intended parents having no legal status for their child once born.

The solution is a parental order - a post birth court application made by the intended parent(s) when the child is born. Once this order is made by the family court legal parenthood is transferred from the surrogate (and if relevant her spouse) to the intended parent(s) and their legal status is resolved. It is a significant order as it extinguishes all the legal rights and responsibilities of the surrogate and is a permanent legal parenthood solution.

Many parental orders have been made following surrogacy arrangements but the process isn’t quick and can take many months to resolve. This means that following the birth and before the court order the intended parent(s) are in legal limbo caring for a child who remains legally connected to their surrogate. This leaves everyone exposed in the event of an unexpected death.

What happens if a will is not put in place before the parental order?

If an adult involved in the surrogacy arrangement dies without a will before a parental order is made, there is a strict legal framework within which their estate will be administered.

This means that the surrogate child would automatically inherit from the surrogate’s estate and they would have no automatic legal rights to claim from the intended parent(s) estate as they are not considered their 'child' until after the parental order is made. This also has a knock on effect in terms of wider family members and definitions such as grandchild, niece, and nephew referenced in their wills which may not be legally accurate.

Why should I put a specialist surrogacy will in place and what will it include?

Wills confirm each person’s intentions and enable surrogates and the intended parent(s) to express their wishes in relation to guardianship and inheritance. They also help resolve the issues identified above and typically included the following provisions:

  • guardianship appointments – the intended parent(s) will need to appoint someone to care for their child in the event of their death. For the surrogate, she will likely agree to appoint the intended parent(s) to care for the child in the event of her death rather than her spouse or any other member of her family.
  • inheritance – as a surrogate child will not automatically inherit from the intended parent(s)' estate they will want to give them this right to ensure their estate passes in accordance with their wishes. From a surrogate’s perspective, she may wish to specifically exclude any child(ren) she is carrying to ensure that they do not automatically quality to inherit from her estate and have an impact on her own family’s inheritance rights.
  • surrogacy expenses - there is no clear legal framework relating to payments in domestic surrogacy arrangements. In the event of the intended parent(s) dying but not all of the agreed expenses yet being paid, the surrogate is not entitled to this from the estate unless the intended parent(s) provide a gift of any outstanding expenses to the surrogate in their will.

How we can help

Our specialist surrogacy advisors have a wealth of experience helping and advising intended parents and surrogates. If you have any queries about your particular arrangement, the parental order process or surrogacy wills, please do not hesitate to contact Jade Quirke or Annika Bell. You may also find our family building hub a helpful resource for your wider surrogacy queries.

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