The Guide To Updating Your Will for Surrogacy

Making a will should be on everyone’s to-do lists, especially for those with children or assets (to ensure everything is managed correctly if they die). But for individuals entering into a surrogacy arrangement (both the intended parents and the surrogate), putting a will in place or updating an existing will for surrogacy is particularly important.

In this guide, we cover everything you need to know about surrogacy and wills, so you’re fully prepared when it comes to starting the process. 

What Is a Surrogacy Arrangement?

In short, a surrogacy arrangement is a legally binding agreement between intended parents and a surrogate mother whereby the surrogate mother agrees to carry and give birth to a child for the intended parents.

The surrogate mother may be the genetic mother – i.e. her own egg was used to create the embryo (referred to as partial surrogacy) – or she may have had a fertilised embryo implanted in her uterus (full surrogacy), in which case she would not be genetically related to the child. 

As it is a legally binding agreement, surrogacy arrangements typically involve a series of steps and agreements to ensure that the process is carried out smoothly and legally.

Importance of Updating Your Will for Surrogacy

Whether you are entering into a surrogacy arrangement with someone you’ve been matched with or a close friend/family member, a will states what will happen if you die. 

With most families, the law gives spouses and their children basic legal protection if a parent dies without having a will in place. However, those protections don’t exist in surrogacy cases. This is because, under UK law,the intended parents are not automatically recognised as the legal parents of children born through surrogacy.

Instead, the surrogate who birthed the child is the legal mother until parental rights are reassigned by virtue of the parental order. If one of the adults involved in a surrogacy arrangement dies unexpectedly before a parental order is granted, the default rules will benefit the wrong people.

These circumstances, however, can be resolved by updating your existing will. Wills confirm each person’s intentions and enable both the surrogates and the intended parents to express their wishes in relation to the child’s guardianship and inheritance.

Wills for Intended Parents

In the UK, intended parents must go through a legal process to establish their parental rights, and updating an existing will for surrogacy can support this recognition. The intended parents will need to appoint guardians who will care for their child if they die, to ensure the child’s well-being and upbringing is in line with their wishes.

Without a properly updated will, there could be uncertainty about how assets will be distributed to the child born through surrogacy. By giving the child the right of inheritance in the will, the intended parents will provide financial security for their future. There is a risk that the child will not be left with anything if there isn’t a provision for this. 

The surrogate may also want the security that her expenses/compensation are covered in the event of either or both of the intended parent’s unexpected death, and this can be provided for too.

Wills for Surrogates

It’s also important that a surrogate should appoint the intended parents as the legal guardians of the child and ensure that the surrogate child would not inherit a portion of her assets. Without this in place, the surrogate’s children could lose a portion of their inheritance if she dies during the surrogacy process.

In the UK, surrogacy laws are complex and can vary depending on the circumstances of each case. Therefore, it’s highly recommended that both intended parents and surrogates seek legal advice and update their wills to ensure that their rights, responsibilities, and intentions regarding surrogacy are fully understood and protected.

How to Update Your Will for Surrogacy:

In the UK, updating your will to accommodate surrogacy involves following specific legal and procedural requirements. Here’s a guide on how to do so:

• Consult a Solicitor – Start the process by consulting with a solicitor who specialises in wills and surrogacy-related cases. These professional solicitors will have the expertise to guide you through the surrogacy process and ensure that your will is legally valid and that your child is fully protected.
  
  If you would like to talk to one of our friendly wills & probate solicitors about updating your will or creating a will for surrogacy, get in touch today.
• Determine Your Intentions – Think about how you want to address surrogacy in your will. Determine who you want to appoint as guardians if your children are born through surrogacy in case you and your partner pass away, most commonly other family members or close friends.
  
  Make sure the chosen guardian is willing to take on this responsibility and is happy for you to appoint them as guardians in your will. Also consider how you want to specify parental rights, and how you want to distribute assets to your child.

• Witness and Signatures – Ensure that your updated or new will is properly witnessed and signed. In the UK, you will often need two witnesses who are not beneficiaries or spouses/civil partners of beneficiaries to sign your will with you. Remember to have your updated will reviewed and validated by your solicitor to ensure it complies with UK surrogacy laws and regulations.

We hope this article has helped guide you in the right direction when it comes to updating your will for surrogacy. 

If you would like to talk to one of our wills & probate solicitors about updating your will for surrogacy, or any other legal advice,  please do not hesitate to contact us.

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