When you're embarking on a fertility treatment, you're already dealing with a lot. You may have had a long and stressful journey to reach this point, and there is a lot to consider: numerous appointments, medication schedules, embryos, scans, hope, and, if all goes well, joy. It may, therefore, seem a bit morbid to start thinking about wills. However, it is an essential part of protecting your family's future.
Fertility treatment can involve different paths to parenthood. Let's say you're using donor sperm, eggs, or embryos. Maybe you're going through reciprocal IVF, or you're in a surrogacy arrangement. Each of these paths can involve multiple people. Whether you are an intended parent, surrogate, partner or donor, there can be complexities in the legal relationships. A will helps ensure that your intentions are clear and your loved ones are protected.
Thinking about the 'what ifs' can feel daunting, but planning ahead provides reassurance. If something unexpected and heartbreaking happens, such as if one of the parents dies before the baby is born or shortly after, it is vital to ensure that the legal complexities are dealt with. Essentially, the worst needs to be planned for. Without a will, your child may not automatically inherit from you, they may not be looked after by whom you choose, or your co-parent may not be legally recognised. It is about removing uncertainty and making sure your family is looked after in the way you want.
Why is a will so important during fertility treatment?
There are several reasons why creating or updating your will is particularly important when you're undergoing fertility treatment.
First, ensuring that your child is financially protected. A will ensures that your assets, however modest or substantial, are passed on according to your wishes. If you die without a valid will (known as dying intestate), inheritance is dictated by a statutory order known as the intestacy rules. This can lead to unexpected or unfair outcomes, particularly for unmarried couples, LGBTQ+ parents, or anyone in a non-traditional family structure.
For example, suppose you're not married or in a civil partnership and you die without a will. In that case, your partner may not inherit your estate even if you are living together or raising a child together. If your child is born after your death, your will needs to be specifically drafted to include them. This is especially important if you would like your estate to be inherited by stored embryos.
Second, naming guardians for your child. You can use your will to nominate guardians for your children. This is the person who will look after your children and make critical decisions, such as those regarding medical care or education.
In cases involving surrogacy or donor conception, the situation can be legally complicated. For example, until a parental order is granted, the surrogate remains the legal mother, and her spouse (if married) may be the legal second parent even if this isn't your intention. If you die before a parental order is made, your will can help clarify who you want to care for your child, and ensure that your intentions are respected as far as possible.
Third, wills are essential in surrogacy arrangements. If you are entering into a surrogacy arrangement, having wills in place for both the intended parents and the surrogate is absolutely vital. Surrogacy law in the UK is still evolving. Until a parental order is granted, the surrogate (and her spouse or civil partner, if applicable) remains the legal parent(s) of the child. This means that if one of the intended parents dies before the parental order is made, it is important that a will includes instructions to ensure that a parental order is made for the surviving intended parent.
A well-drafted will can set out your wishes clearly, provide for the child's future, and offer guidance to the court when making decisions about guardianship and inheritance, carefully accounting for the complicated legal parenthood legislation meeting the 1800's wills legislation.
It's also advisable for the surrogate to have a will in place – particularly if she is pregnant – to avoid any uncertainty about who would care for the child if something happened to her before the parental order is finalised. Both parties should seek independent legal advice to ensure all angles are covered. If the surrogate does not have a will, or it has not been drafted by a specialist, the baby could end up inheriting from her estate. There can be additional complexities if the surrogate is married. A surrogate's spouse could become the legal parent of the child and could also accidentally benefit the child without a properly drafted will.
Clinics will typically ask you to complete consent forms regarding the storage and posthumous use of stored embryos, but you can reaffirm your wishes in a letter stored alongside your will. Without explicit, lawful consent, your embryos may not be used after your death, even if that's what you would have wanted.
Fourth, providing for a surrogate or donor. In some situations, you may wish to include a surrogate or donor in your will, perhaps with a financial gift or to confirm that their fees should be paid from your estate. While not required, doing so can reflect your gratitude and ensure they are looked after in the unlikely event of your death before the child is born or shortly afterwards.
Timing matters
You do not need to wait until you or a surrogate is pregnant to put a will in place, and you certainly should not wait until the child is born. In fact, the earlier you do it, the better. Fertility treatment is emotionally and physically draining, and the legal paperwork often takes a backseat. Therefore, addressing it early is crucial.
It also matters who you instruct to draft a will for you; you must instruct someone with experience in drafting wills for modern families. They will understand the unique challenges brought by fertility law, LGBTQ+ families and those going through surrogacy.
Make sure it includes:
- Clear provisions for any existing or future children.
- Instructions about guardianship.
- Provisions for your partner, spouse, surrogate.
- Specific wording regarding parental responsibility and who you would want to have it, where appropriate.
- Any specific wishes around inheritance, especially in complex family setups.
And don't forget to review your will after significant life changes, including a successful pregnancy, birth, adoption, or parental order being granted.
Creating a will during fertility treatment isn't about being pessimistic; it's about being prepared. It is essential for protecting not just you and your new family, but also the surrogate and her family. You're doing everything you can to bring a child into the world and build the family you dream of. Making a will is one more step in protecting that future.