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Surrogacy: planning for a family

Posted on 1 August 2022

Surrogacy is increasingly becoming an option for couples and individuals. It is crucial to plan meticulously for building a family and ensure that legal parentage has been properly conferred. However, consideration as to the child's future financial security is also paramount to the surrogacy journey. 

Before considering the legal position and financial protection for intended parents and surrogates in a surrogacy arrangement, it is important to understand the concepts of legal parentage and parental responsibility.

Legal parentage and parental responsibility

It is only possible for a child to have two legal parents. The term parent confers an important status to both the parent and child and is relevant in terms of matter such as inheritance, nationality, financial responsibility and the ability to bring court proceedings about a child. 

Legal parenthood differs from parental responsibility, which includes 'all rights, duties, powers, responsibilities and authority which by law a parent of a child has.' Parental responsibility is a concept central to matters concerning the welfare of a child – all important decisions about a child's life will require the agreement of all those with parental responsibility. Whilst a child can only have two legal parents, it is possible for more than two individuals to hold parental responsibility.

Legal parentage and parental responsibility in a surrogacy arrangement

The woman who gives birth to the child is always considered the legal mother at birth, regardless of whether she has a genetic connection to the child. The identity of the second parent will depend upon the specific facts arising. If the surrogate is married, or in a civil partnership then the surrogate's spouse or civil partner will be the second legal parent (provided they consented to the surrogacy). If the surrogate is single, and the intended father is the biological father, he will be considered the second legal parent at birth.

Therefore, in the case of a surrogacy arrangement where the surrogate is married, even if the gametes of the intended mother and father are used to create the embryo, at birth neither of the intended parents will have any status in respect to the child despite it being their biological child. 

How do intended parents obtain legal parentage?

In order for intended parents to become legal parents in the UK following a surrogacy arrangement, they must obtain a Parental Order. A Parental Order has the effect of extinguishing the status of the surrogate's parental status (and if relevant her spouse or civil partner) in respect to a child and confers that status on the intended parents. 

It is only possible for a Parental Order application to be made following the child's birth and then within a six-month period. The court cannot make a Parental Order until six weeks after the child's birth as the law prescribes that a surrogate can only validly consent to an Order after this period has elapsed.

Many intended parents will travel abroad in order to enter into surrogacy arrangements. In certain jurisdictions (such as California) intended parents will acquire parental status either prior to or immediately following the birth. However, regardless of the intended parents' status in another jurisdiction it remains the case, that when returning to the UK one of both intended parents will have no legal status in respect to the child. 

Surrogacy agreements are unenforceable in the UK. As such, those entering into such agreements rely on one another to honour the terms of the agreement. It is also illegal for a third party (including a solicitor) to negotiate a surrogacy agreement for any remuneration. Notwithstanding that such agreements are unenforceable, those parties entering into surrogacy arrangements are still advised to consider entering into one, as it prompts all parties involved to consider all the important elements and eventualities arising from the arrangement.

Financial security for the child

Financial planning for the intended parents, surrogate mother and even her spouse/civil partner is a fundamental part of the surrogacy journey. If planning is not undertaken, a plethora of questions may arise on the death of any of the parties:

  • Will the child inherit from the intended parents?
  • Will the child unintentionally inherit from the surrogate mother?
  • Who is the child’s guardian?
  • Does the surrogate have financial protection?

These uncertainties are particularly acute in the period between birth and the intended parents becoming legal parents by obtaining a Parental Order, a process which will usually take between six to nine months. 

Immediate financial considerations

It is important to ensure that all parties have wills as otherwise the intestacy rules could provide the wrong outcome on the death of a party before the Parental Order is made. In particular, the intended parents should extend the definition of “Children” in their wills and any trust documentation with reference to the Human Fertilisation and Embryology Act 2008, otherwise the surrogate child will not be recognised by default. In contrast, the surrogate mother may wish to limit the class of children in the will to exclude the surrogate child.

The surrogate mother should appoint the intended parents as guardians and agree upon a replacement. This is usually dealt with in the surrogate mother’s will, or by her complying with signing formalities in writing. The guardian(s) should agree to their appointment, otherwise responsibility could fall to the surrogate mother’s family instead (subject to the position of a married surrogate's partner). 

Ensure financial provision for reasonable expenses, which may be detailed in a surrogacy agreement, are addressed in the wills of the intended parents. Being unenforceable, the surrogacy agreement otherwise affords no financial protection should the intended parents die before they can fulfil the payment terms. 

Additional financial considerations

As US surrogacy arrangements become increasingly common for intended parents in the UK, a surrogate child’s US citizenship should not be ignored when considering both new and existing family trust arrangements. Careful planning and advice should be taken to ensure you do not inadvertently cause global tax problems for the child in the future, should they choose to remain a US citizen. 

Children do not inherit the titles (such as peerages) of their intended parents if they are the product of surrogacy. Where titles are tied to property, children may inadvertently be excluded from family inheritance. While this may seem inconsistent, it should be considered by families who wish to ensure their children do not lose out.

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