Surrogacy is when a person agrees to bear a child for someone else. Although it is legal in the UK, surrogacy arrangements cannot be enforced by the courts and it is illegal to pay the surrogate anything other than their reasonable expenses. This therefore limits the type of surrogacy arrangements available here to what is called “altruistic” surrogacy (as opposed to “commercial” surrogacy). As a result, many hopeful parents head overseas in search of a surrogate.
Numerous legal complexities can arise from a surrogacy arrangement. Under UK legislation (namely the Human Fertilisation and Embryology Act 1990, later followed by the Human Fertilisation and Embryology Act 2008), the surrogate is the legal mother of the child until parenthood is transferred. This remains the case even with gestational surrogacy (which is when the egg and sperm have no genetic link to the surrogate). Furthermore, if the surrogate is married or in a civil partnership when she conceives, her spouse or civil partner will be the child’s second legal parent until parenthood is transferred (unless that person can prove they did not consent to the conception).
This can have huge implications in the context of inheritance law. Take, for example, a woman who acts as a surrogate for a couple and gives birth to a child. In the eyes of the law, that child would be classed as the surrogate’s child until parenthood is transferred to the couple (either via a parental order or an adoption order). Until then, the child could potentially fall within the surrogate’s beneficial class of “my children” in her Will. This means that the child could be classed as one of her beneficiaries and entitled to inherit from her estate if she were to die within this time.
If the surrogate had every intention of honouring the surrogacy arrangement, this is unlikely to coincide with her intentions at the time her Will was drafted. This also places the surrogate’s executors in a dangerous position if they do not consider the child when distributing her estate (as they may be deemed personally liable).
Conversely, if the child received no provision in the Will, their future guardians might be able to bring a claim against the estate for reasonable provision under the terms of the Inheritance (Provision for Family and Dependents) Act 1975.
In consequence of the above, if you are a surrogate or are considering using a surrogate for your own family, we would urge you to take legal advice on these succession issues and to consider putting in place arrangements that will ensure that your child is protected in all circumstances. A well drafted Will could, for instance, appoint the intended parents as guardians for the newly born child until legal parenthood can be transferred (subject to the position of a married partner).
If you are affected by any of the issues in this article, please do not hesitate to contact any member of our private client team for further advice.