Planning for death when you’re making life – why you should make a will if you’re conceiving through assisted reproduction

There are many examples of problems when a person unexpectedly dies without leaving a Will, and it is always advisable to make a Will as soon as you own any significant assets. However, starting a family should also prompt you to do so, so that you make sure the tiny person you are bringing into the world can be cared for, both practically and financially, if something happens to you. The issues can be even more acute for children conceived through assisted reproduction, where gaps in the law can create extra vulnerabilities if someone dies. So, if you are conceiving a child through assisted reproduction, don’t forget to plan for what might happen if you die.

Wills for surrogacy

In the case of families conceiving through surrogacy, the UK legal position at birth is that the surrogate is the child’s legal mother, and if she is married, her spouse is the other legal parent. This means that the intended parents have no legal relationship with their child (and that’s the case in the UK even if their child is born overseas and they are named on the birth certificate in the country of birth). A UK parental order resolving that will take months to obtain, which means that if the intended parents die during the pregnancy or before the order is granted, their child born through surrogacy would have no automatic right to inherit from them. On the other side of the fence, if their surrogate dies during this time, the child will be treated as one of her children, and this may partially disinherit her own children. We therefore always advise intended parents and surrogates to make wills to actively address this awkward application of the law, and to ensure the child inherits from the right people. 

There are other issues to deal with in surrogacy wills too, including appointing appropriate guardians, considering embryos and gametes left in storage and making sure a surviving parent is given authority to make a parental order application on their behalf if they die unexpectedly during the surrogacy process (see for example Re X (2020) in which we represented the parents and wrote a further blog on the complexities of this). 

Wills for donor conception

Similar issues arise in term of donor conception. Many parents are automatically recognised as legal parents, including birthing parents, married partners in certain circumstances and unmarried partners who conceive at UK licensed fertility clinics and sign the requisite legal parenthood forms before conception. If you conceive at a UK fertility clinic using an egg or sperm donor, or if you conceive through artificial insemination with donor sperm elsewhere (abroad or at home) and are married at the time of conception, the Human Fertilisation and Embryology Act will regulate how things work in terms of parenthood.  

However, some parents fall outside these rules, including couples who are unmarried and conceive with a known donor through home insemination, and some transgender parents. In such cases,  it is extremely important to ensure that specialist Wills are in place so that the donor conceived children are able to inherit from their rightful parents, and to protect the parent who is not a legal parent by ensuring they would have a continued right to care for their child if their partner dies. 

Multi parent families

The lines become even more blurred in cases of co-parenting arrangements and polyamorous family units where a child has more than two parents. Since UK law recognises a max of two people as being legal parents, one or more of the child’s parents will have no connection with them. Who this is will depend on the specifics, so getting legal advice is important. 

Once again, one of the ways to ensure that the resulting child is able to be legally and financially linked to the correct individuals is through your Will. A carefully drafted Will will ensure that all parents are able to pass on their assets to their children how they wish, and to make sure the right people can care for their child if they die. 

Guardianship

Wills are not just important to ensure that a child is financially cared for after your death. They can also be used to nominate the individual/s who will care for your child if you die before they reach the age of 18. 

This is a very important legal mechanism for families conceived through assisted reproduction since it enables someone who is not (or not yet) a legal parent to be nominated as a guardian for the child, and so have a guaranteed right to continue caring for them if the legal parent dies. We often use this in surrogacy cases (where a surrogate can appoint the intended parents as guardians of their own child, just in case she dies before the parental order is granted), in donor conception cases where the second parent plans to apply for adoption but this will take time, and in co-parenting cases where one or more of the parents will remain a non-legal parent indefinitely. 

Get in touch

The issues around parenthood and parental responsibility can be particularly complex for families conceived through assisted reproduction so whoever drafts your Will needs a clear understanding of fertility law to make sure your Will achieves all it needs to for your family. Please do get in touch if you would like our help.