Providing In Your Will For Children & Grandchildren Born Via Surrogacy Or IVF
In her latest blog, Timms Charlotte Day discusses providing in your Will for children and grandchildren born via surrogacy or IVF…..
With advances in science and medicine more and more children are being born via surrogacy or through IVF. During this exciting time, very few people would think about making provision in their Wills to ensure that provision is made for the new arrival.
Who Are The Parents?
English law states that the woman who gives birth to a child is the child’s ‘legal mother’.
If the woman is married to a man, then the husband is considered the ‘legal father’ and if she has entered a civil partnership then her partner will be considered ‘the second legal parent’.
If the woman is unmarried and not in a civil partnership the certain conditions must be met to confirm the partner’s status.
What Is The Legal Definition Of A Child?
Under English law the definition of ‘a child’ only extends to biological or adopted children. Therefore, it may be appropriate for court orders to be obtained following the birth of a child to confirm parentage.
What About Children Born Via A Surrogate?
Where a child is born to a surrogate, the surrogate mother will be the child’s legal mother until such time as a parental or adoption order has been granted in favour of the child’s intended parents.
Obtaining these orders can be very time consuming and it is possible that either the surrogate or one or more of the intended parents could die before the order is obtained.
If this should happen and no alternative arrangements had been made, then there could be a disagreement. For example, who should have legal responsibility for the child, whether the child should inherit a share of the surrogate mother’s estate and whether the intended parents should still pay any agreed expenses to the surrogate mother’s estate.
Therefore, there are some points that can be addressed to avoid some of these issues:
- The appointment of the intended parents as guardians for the child.
- Direct provision for the child in the intended parents Wills.
- Ensuring that the child is expressly excluded from the surrogate mother’s Will.
- Making provision for the surrogate mother’s expenses in the intended parents’ Wills.
Grandparents and other family members wishing to provide for children born via a surrogate should also take great care when making reference to the child born via surrogacy to ensure that they are included in any inheritance, as it may be that person wishing to provide for the child knows that they are on their way, but dies before the child is born.
What Is The Position Where A Child Is Born Via IVF?
Where a child is born via IVF the woman who gives birth to the child will be considered the legal mother, regardless of whether she is genetically related or not, and if she is married or in a civil partnership then her spouse/partner will be considered the legal father/second parent.
However, issues can arise where the mother and her partner are unmarried or not in a civil partnership as the treatment will need to have been carried out by a UK licenced provider for the same rules to apply.
If you would like further advice regarding the preparation of Wills, please do not hesitate to contact Charlotte Day on 01530 564 498 or c.day@timms-law.com
Charlotte Day
November 2020