The importance of a Will arising from a surrogacy arrangement

Entering into a surrogacy arrangement is a process that takes a lot of legal consideration and specialist legal advice, and a new Will a key document to put in place before the child is born.

The surrogacy contract will outline various elements of the arrangement, and it is prudent to seek expert legal advice to ensure that this meets your requirements and that you are recognised as the child’s parents.

The surrogacy process

In almost all cases, a Will is a legal requirement of a surrogacy arrangement, to protect the unborn child if something unexpected and tragic were to happen.

In the UK, the intended parents will have no legal right over the child until a Parental Order is granted, and the application for this cannot be made to the Court until the child is 6 weeks old.

In the Will, the intended parents should provide for their child through appointing guardians and give the executors the right to pay any expenses, such as legal fees, to complete the surrogacy agreement. It is usually a requirement when appointing a guardian for a surrogacy to get their consent in writing. The surrogate should appoint the intended parents as legal guardians of the child and exclude the child from any right of inheritance in their will.

When the surrogacy involves bringing a child into the UK from abroad, you may need to make immigration arrangements, and many surrogacy arrangements will have specific requirements to contend with.

Creating or updating your Will

It is important to include a side letter with you Wills to provide guidance about certain matters, such as if you would like them to attend a specific school and to maintain contact with certain family members.

This side-letter is not legally binding but can place a moral obligation on the executor of the Will to ensure your wishes are followed.

You may wish to update your Will once the parental order has been granted, as you can remove the references to the surrogacy if this is your preference.

Protecting your children, whether born or unborn, is vital, and so expert legal advice is essential to ensure their inheritance and wellbeing is being looked after by the people you trust.

For help and advice on matters relating to Wills and estate planning, contact our expert team today.

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Natalie Payne

Natalie Payne

Senior Associate Solicitor, London, Head of Private Client, Wills and Probate Team at Mackrell.Solicitors
Natalie is a Private Client Solicitor at Mackrell.Solicitors and is based in their London office. Natalie has a very hands on approach with her clients and guides them through every step when looking after their personal affairs and/or those of their friends and family.