The impact of surrogacy on estate planning

Having a child through Surrogacy is an exciting and stressful time for the Surrogate, the Commissioning Parents and their respective families.  People are coming together to bring a new life in to the world and create a new (or extended) family for the Commissioning Parents … but  when it comes to Wills and Estate Planning, there can be unexpected results.

Some Important Definitions to Remember 

• “Commissioning Parent(s)” (also known in some States as the “Intending Parent(s)) – This is the person / people who are entering in to the Surrogacy Agreement with the intention of being the parents of a Child when the Agreement is at an end
• “Biological Parent” This person provides the genetic material (sperm, egg) for the creation of the Child. Often one of the Commissioning Parents is also intended to be a Biological Parent but this is not always possible. 
• “Surrogate” is the woman who carries and gives birth to the child.  Sometimes the Surrogate is also a Biological Parent to the child, this is known as Traditional Surrogacy.

In South Australia the Surrogate Mother (and her partner) are deemed to be the parents of any child born of a surrogacy arrangement whether they are genetically related to the child or not.

This presumption does not change until the Youth Court of South Australia makes an Order transferring parentage from the Surrogate to the Commissioning Parents, under the current legislation (Family Relationships Act 1975). An Application for this to occur can take up to 6 months to come before the Court.

So during the period of gestation and post-birth the child may have legal parents, biological parents, as well as the Commissioning Parents (one or both of whom may not be biologically related to the child), and may have entitlements to the Estates of each of them in the event of a death.

The Surrogate and her partner 

Often a person will have a Will which leaves their estate to “their Children”.

In the event a Surrogate was to die during child birth, the Surrogate Child may be legally classed as a child of the Surrogate and therefore captured under her Will as a beneficiary of her estate.

This entitlement may even extend past a future transfer of parentage to the Commissioning Parents as they remain a child of the Surrogate at the time the Surrogate’s Estate is administered. 

The same is true for the Surrogate’s partner who is legally taken to be the other parent of the child.

It is therefore essential  that a Surrogate and her partner update their Will with care so it accurately reflects who they consider to be their children and also their intentions regarding any child born to the surrogacy arrangement.

Surrogates should also be sure to advise their lawyer in the future that they have previously had a child as part of a surrogacy arrangement, even after parentage has been transferred, so that proper protections are in place.

This is particularly important if the Surrogate has donated genetic material and is therefore biologically connected to the Child.

The Commissioning Parents

Legally, the Commissioning Parents are not parents of the child until after a parentage transfer occurs.

As such  if the Commissioning Parents’ Will uses the phrase “my children” it may not actually provide for a surrogate child, particularly if there is no biological connection between the Commissioning parent and the child.

So, a carefully crafted and up-to-date Will is a must for all parties entering into a Surrogacy Arrangement:  the Commissioning Parents, the Biological Parents, and the Surrogate.  At the very least, the Commissioning Parents’ Wills should:

1. Make careful reference to any child born of a Surrogacy Arrangement;
2. Note who is to administer any interest the child born of the Surrogacy Arrangement is to receive;
3. Appoint a person who they would wish to act as a guardian for the child, so to assist that person’s  standing to make an application to the Family Court of Australia if required.

Therefore when considering entering in to a Surrogacy Arrangement – either as a Surrogate, the partner of a Surrogate, someone providing genetic material, or the Commissioning Parents – it is important to make sure your Estate Planning is up to date so that your wishes are carried out now and in the future. 

If you have any questions about your estate planning, call us on (08) 82121077, register your details here and we’ll get back to you soon.