Stumbling into surrogacy – avoiding the pitfalls on inheritance and decision making for surrogate children

The family law perspective

Legal parenthood at the time of birth

In England and Wales the surrogate will always be the legal mother of the child at birth. If the surrogate is married or in a civil partnership, then their spouse or civil partner will usually be the child’s father or second legal parent. This still applies to international surrogacy arrangements where the surrogate is not recognised as a legal parent in the country of birth, and the intended parents (not the surrogate) are named on the child’s foreign birth certificate.

If the surrogate is not married or in a civil partnership, then it may be possible for one intended parent to be recognised as a legal parent from the date of the child’s birth.

This means that at the time of birth at least one intended parent will not be a legal parent and the surrogate will always be a legal parent.

The intended parents have to wait until the child is born to then apply to the court to become the child’s legal parents. This process takes between nine months and 15 months to complete post-birth. The child, surrogate and intended parents and are all legally vulnerable during this period. The surrogate remains legally responsible for welfare decisions about the child, and the intended parents are severely restricted in their ability to make decisions regarding the child in their care without the surrogate’s express permission.

The bespoke long-term legal solution is for the intended parents to apply for a parental order. The making of the parental order will permanently end the child’s legal relationship with the surrogate and their family and reassign legal parenthood to the intended parents. The parental order can only be applied for after the child is born. There is currently no pre-birth legal process in England and Wales. The courts of England and Wales cannot and will not be bound by a surrogacy agreement (even if such an agreement is prepared as part of an international surrogacy arrangement and is binding in that country).

There are interim options available whilst parental order proceedings are ongoing. Intended parents can ask the court to make an order that the child lives with them to give them parental responsibility. This allows them to make decisions about the child’s day-to-day upbringing, medical treatment and education.

Legal parenthood following the grant of a parental order

A parental order in favour of the intended parents has a transformative effect. The child becomes the child of the intended parents and the legal status and responsibilities of the surrogate (and their spouse or civil partner, if applicable) are brought to an end.

If the child was born in England and Wales, their British birth certificate will be reissued naming the intended parents in the place of the surrogate (and their spouse or civil partner, if applicable). If the child was born abroad, a British birth certificate will be issued with the intended parents as parents.

Inheritance and surrogacy

The importance of a Will

The surrogate, and their spouse or civil partner, will be the child’s legal parents at birth. This can bring a significant risk to the surrogate and their spouse in relation to the distribution of their estate if one or both were to die before a parental order has been made by the court.

Under the rules of intestacy, if a person dies without a Will, any legal child will inherit a portion of the estate (provided their estate is large enough). This means that if the surrogate, or their spouse, were to die without a Will, the child born by surrogacy could inherit a portion of the estate. Even if a Will is in place, if it has been made prior to the surrogacy arrangements and makes provision for the “children of the couple”, under this class description the child born by the surrogate would be entitled to a share along with the other children of that couple, until a parental order is obtained by the intended parents.

The opposite is true for the intended parents of the child. If they were to die before a parental order is obtained, they are not the legal parents of the child, so that child has no entitlement under the intestacy rules. Again, even if a Will is in place naming “children” as beneficiaries of their estate, until the parental order is made, the child born by the surrogacy arrangement would not be considered to be a child of the deceased, so could not inherit under the Will. Whilst that child could make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, this would be a complicated and lengthy process that is better avoided.

The solution for all parties would be to put in place a Will as soon as the surrogate becomes pregnant. The Will should set out clearly what is to happen so far as guardians and the portion of the estate to pass to the as yet unborn child is concerned. This ensures that the child is adequately provided for in the event the unthinkable happens and one of the parents (legal or otherwise) dies prematurely.

Trusts

If you make a Will or a trust today leaving your estate to your “children”, it is assumed that all children, including legitimate, illegitimate, adopted, etc. will be included in that definition (unless you expressly say otherwise).

This has not always been the case. Before 1950, an adopted child was not considered to be within the definition of the adopter’s “child”. Between 1950 and 1976, the law is confused and depends on whether the child was adopted prior to any disposition (for example, a Will) or not – if they were adopted prior to the disposition they are considered to be a child and would inherit, if they were adopted after, they would not.

Historically, adopted children were not considered to be equal to legitimate, natural children of the same parents. It is therefore possible that some trusts may not consider any children born via surrogacy as a “child” of the intended parents, even after the making of a parental order. The position is unclear, as there have been cases where successful claims have been made by adopted children in relation to trust assets. However, there is no retrospective law applying to trusts that were set up before the law was changed, to ensure that all children, no matter their legitimacy or adoption status, are included in the definition of children. We are reliant instead on human rights legislation to enable the courts to find in favour of any beneficiaries having to make a claim in such circumstances.

The position of children born by via surrogacy arrangement is a little unclear. The parental order when issued is akin to an adoption order, but it is not the same, and so it is not clear how these historic laws related to adoption might apply to children born via a surrogacy arrangement.

Some families use a trust to make provision for their family during their lifetime or upon their death. Existing trusts can be decades old, drafted when surrogacy arrangements were less common and they are unlikely to have been contemplated when the documents were prepared. These older trust structures can be very inflexible and may have been made at a time when the definition of children would not have extended to children who are subject to a parental order following a surrogacy arrangement.

Even if the trust structure does permit a child subject to a parental order to benefit, if the trustees do not have the ability to add beneficiaries, then trust funds could be diverted elsewhere in the event of the premature death of one of the intended parents before a parental order is in place.

It is essential that families seek advice as early as possible on any trust structures, so they fully understand the implications of the surrogacy arrangements on the specific trust in question, and can make suitable provision for the child born under those arrangements.

Anyone considering entering into a surrogacy arrangement should think about these issues as early as possible and Blake Morgan’s Succession & Tax and Family teams would be very happy to help advise you.