Surrogacy is an increasingly common way to build a family, but the legal position in England and Wales can be quite different from what people expect. If you’re considering this route, it’s important not only to understand how the law works at the outset, but also to think ahead, particularly when it comes to your Will and wider estate planning.
Perhaps the most key feature of the law in England and Wales is that, where a surrogate is used, she will be the child’s legal mother at birth, regardless of whether or not she is biologically related to the child.
If she is married or in a civil partnership, her spouse or civil partner may also automatically be recognised as the child’s second legal parent. This means that, at birth, the Intended Parents (‘IPs’) don’t yet have legal parental status.
This is the case even where all parties have entered into a surrogacy agreement, as these agreements aren’t legally binding in England and Wales. Whilst it is still a good idea to prepare an agreement so that everyone’s expectations are managed, the IPs must understand that the courts won’t enforce a surrogacy agreement if a dispute arises. Instead, there is a complex framework of law, and the court will always operate in a way which prioritises the child’s welfare.
As a starting point, the surrogate (and potentially also her spouse or civil partner) will therefore be the child’s legal parents at birth and have parental responsibility for them, even if the child is in the care of the IPs from birth.
To acquire legal parenthood and parental responsibility, the IPs must apply to the Court for a Parental Order. This is a Court Order which transfers legal parenthood from the surrogate (and potentially also her spouse or civil partner) to the IpsIPs. This process cannot be started until at least 6 weeks after the birth of the child. , and it cannot be done until at least 6 weeks after the birth of the child.
There are certain criteria which have to be met for the application to press ahead, and this can be complicated where surrogacy arrangements have taken place abroad. It is always our recommendation that couples considering surrogacy take legal advice at an early stage to reduce the risk of unexpected complications.
Because a court order has to be applied for, there is inevitably a period of delay between the child’s birth and the Parental Order being made during which the surrogate remains the legal parent, and the IPs do not yet have parental responsibility for the child.
This delay can, in rare instances, give rise to serious legal complications. Although it is not an easy subject to address when planning to welcome a child, it is essential that all parties involved give due consideration to the worst-case-scenarios, such as grave illness or death. This is where succession planning becomes particularly important, and although it is easily overlooked, it must form part of the legal advice received in all cases where a surrogate is used.
As you have read, the IPs of a child born through a surrogacy arrangement do not receive full parental rights until a Parental Order is obtained, a process which cannot be done started until at least 6 weeks after the child’s birth.
This results in some serious, but easily forgotten, implications for the surrogate, their spouse/civil partner and the IPs.
If a surrogate, or their spouse/civil partner, dies with a Will which leaves any of their estate to ‘their ‘children’ or ‘issue’, this would include ALL children, including the surrogate child, if a Parental Order has not yet been obtained.
However, if either or both IPs die with a Will which leaves any of their estate to ‘their ‘children’ or ‘issue’, this would NOT include the child of the surrogacy arrangement unless a Parental Order has already been obtained. It is possible for the child to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a complicated and time-consuming process.
If an individual dies WITHOUT a Will, their estate will be distributed in accordance with the rules of Intestacy. This means that the spouse/civil partner of the deceased is entitled to £322,000 plus 50% of the remainder of the estate. The other half of the remaining estate is divided equally between any children of the deceased.
Again, this would mean that if the surrogate, or their spouse/civil partner, dies without a Will and their estate is worth more than £322,000, then the surrogate child would receive a share of the surplus.
If, on the other hand, either of the IPs died without a Will, the surrogate child would NOT be included as a child of the deceased under the Intestacy Rules unless a Parental Order has already been obtained. As before, it is possible for the child to bring a claim, but this is not the most practical or cost-effective solution.
Another key consideration for all parties is Guardianship, should something happen to the Surrogate, their spouse/civil partner or the IP(s).
It is important to recognise that, in order to legally appoint a Guardian, a person must have parental responsibility for the child. This means that until a Parental Order is obtained, the surrogate and their spouse/civil partner are the ones with parental responsibility for the child, and as a result are the ones who can legally appoint a guardian.
If the surrogate and their spouse/civil partner have their own children and have named their relatives/friends as Guardian in their Wills, this arrangement would include the surrogate child.
To combat this issue, all parties – the surrogate, their spouse/civil partner and the IPs – should ensure they have up-to-date Wills to safeguard in the event of an unforeseen death.
The law around surrogacy arrangements is complicated, and obtaining legal advice at an early stage can help you to navigate the process with confidence and clarity. Our specialist surrogacy lawyers, Judith Harling-Coward and Daniel Bennett, work hand-in-hand with our expert succession planning team to deliver clear and comprehensive advice and support, so that you can stress less, mitigate risks and focus on what matters most – welcoming a child into your family.
If you’re planning your surrogacy journey or need guidance on any part of the process, we’re here to help. Contact Judith-Harling Coward to book your initial consultation.
