Building a family through surrogacy? Your Will matters more, not less

Bringing a child into the world through surrogacy is one of the most hopeful journeys a family can take. It is also one of the few routes to parenthood where the legal position does not simply catch up with the reality of your family when your child is born.

In England and Wales, there can be a period between your child's birth and the making of a parental order during which the people who intend to raise the child are not yet their legal parents. That can have important consequences for parental responsibility, guardianship and inheritance if an intended parent dies during that period.

A Will is often thought of as something to sort out “later”. For intended parents, later is exactly the problem.

Here is why your Will deserves attention early, and why questions about genetics, legal parenthood and who would care for your child if the worst happens should all form part of the same conversation.

Who does the law treat as a parent at birth?

In England and Wales, the person who gives birth to a child is the child's legal mother, regardless of who provided the egg.

Depending on the circumstances, the surrogate’s spouse or civil partner may also be treated as the child’s second legal parent at birth. In some circumstances, the surrogate’s spouse or civil partner may have legal-parent status at birth, even where they are not the child’s biological father.

However, where the intended parents are not already the child's legal parents, legal parenthood can transfer to them through a parental order.

A parental order is therefore a crucial part of the surrogacy journey. Once made, it reassigns legal parenthood to the intended parents and gives them the legal status of parents for the future.

Until that happens, the legal position may not match the family that exists in reality.

Whose egg or sperm was used — and why does it matter?

Genetics has an important, but specific, role in surrogacy law.

Under the current parental-order framework, at least one intended parent must be genetically related to the child. So, where donor eggs and donor sperm have both been used and neither intended parent has a genetic connection to the child, a parental order is not available under the current statutory criteria. Adoption may then need to be considered as an alternative route to legal parenthood.

But genetic parenthood and legal parenthood are not the same thing.

This distinction matters for estate planning.

Genetics can determine whether a parental order is available; legal parenthood determines the child's legal relationship with their parents. A Will can provide additional protection during the period before that legal relationship is established.

The gap between birth and the parental order

An application for a parental order must generally be made within six months of the child's birth. The surrogate's consent to the order cannot normally be given until the child is at least six weeks old.

That means there can be a period in which the family is caring for and raising a child who is not yet legally their child for all purposes.

That gap matters if an intended parent dies.

If an intended parent dies without a Will, the intestacy rules determine who inherits their estate. Those rules operate by reference to legal family relationships. If the parental order has not yet been made, the child may not be treated as that person's child for intestacy purposes.

The result could be that an estate passes to other relatives rather than to the child the deceased intended to provide for.

A Will can provide important protection during this period by making express provision for the child, rather than leaving the outcome to the intestacy rules.

If an intended parent dies before a parental order has been made, the legal position can become considerably more complicated. The courts have allowed parental-order proceedings to continue in appropriate cases following the death of an intended parent, but this is a complex area of law and should not be relied upon as a substitute for careful estate planning.

The safest approach is to plan for the legal position that exists today, while the parental-order process is still outstanding.

What should a good Will do for a surrogacy family?

A Will for an intended parent should be drafted with the particular circumstances of the surrogacy in mind.

Make your intention clear

Rather than relying solely on a general gift such as “to my children”, it is sensible to make the Will's intention particularly clear where a child has been born, or is expected to be born, through surrogacy.

Your Will can contain specific provisions identifying the child and making clear that your intention is to benefit them, including during the period before a parental order is made.

The precise drafting will depend on your circumstances, including whether the child has already been born, whether a parental-order application has been made and whether you are genetically related to the child.

Provide for the period before and after the parental order

Your Will should be designed to work with your family's legal position both before and after the parental order.

That means considering what happens if you die:

• before the child is born;
• after the child is born but before a parental order is made; and
• after the parental order has been granted.

The aim is to avoid a situation in which an unexpected change in legal status or timing creates an unintended gap in your estate planning.

Review the Will once the parental order is made

Once the parental order has been granted, your child's legal position changes significantly.

That is a natural point to review your Will, any letter of wishes and other estate-planning arrangements to make sure they accurately reflect your family's new legal position.

It is also sensible to review your arrangements following other major life events, such as the birth of another child, a separation, marriage or civil partnership, or a significant change in your financial circumstances.

Appointing a guardian: the piece people forget

For many parents, deciding who would care for their child if they died is one of the most important decisions they will ever make.

A valid testamentary guardian appointment can allow a parent to nominate the person they would want to take responsibility for their child if they die. It can provide a clear expression of the parent's wishes at a time when the family may otherwise be facing uncertainty.

But surrogacy adds an important complication.

The ability to make an effective testamentary guardian appointment depends on the person making the appointment having the necessary parental responsibility. Before a parental order is made, an intended parent may not have parental responsibility for the child.

This means that guardian appointments need to be considered alongside the parental-order process and the family's wider legal position. A Will should not be drafted on the assumption that a guardian appointment will automatically operate in the same way before and after a parental order.

The important question is not simply “Who would we want to look after our child?” It is also “Who currently has the legal authority to make that appointment?”

A short checklist

• Make a Will early. If you are pursuing a surrogacy arrangement, do not wait for the parental order before considering your estate planning.
• Make your intentions clear. Consider specific provisions for your child rather than relying solely on a general gift to “my children”.
• Plan for the gap. Make sure your estate planning takes account of the period between birth and the making of a parental order. It would also be beneficial for the Surrogate to have a Will in place to deal with this.
• Think about guardianship. Decide who you would want to care for your child, but make sure the proposed appointment works with your current parental-responsibility position.
• Consider the “what if?” scenarios. Your Will should work as far as possible if you die before the birth, after the birth but before the parental order, or after the order has been made.
• Review after the parental order. Once legal parenthood has changed, revisit your Will and wider estate planning.
• Review after major life events. Your family circumstances and the law can change, so your estate planning should change with them.

A note on the law ahead

The law governing surrogacy has been the subject of significant reform proposals.

The Law Commission's review recommended a new pathway that would, in qualifying domestic surrogacy arrangements, allow intended parents to become the child's legal parents from birth rather than requiring them to obtain a parental order afterwards.

Those recommendations have not been implemented. The Government's response in 2025 indicated that it was not able to prioritise the proposed reforms, so the existing parental-order framework continues to apply in England and Wales.

The law in this area continues to develop, including through decisions of the courts concerning parental orders and the death of an intended parent.

For now, the sensible approach is to plan around the law as it currently stands, while keeping your estate planning under review as the legal framework develops.

How We Can Help

At Laurus, we believe legal advice should treat you as a person, not a file.

Building your family through surrogacy is a profoundly human undertaking, and the estate planning around it should feel that way too.

A carefully considered Will can help ensure that your wishes are clear and that your child is provided for, including during the period when the legal position may not yet reflect the family you have created.

If you would like to put a Will in place, or review an existing Will in light of a surrogacy arrangement, our Legacy team would be glad to talk it through with you.

If you would like to put a Will in place, or review an existing Will in light of a surrogacy arrangement, our Legacy team would be glad to talk it through with you. Please contact the team on enquiries@lauruslaw.co.uk or call 020 3146 6300