Definition of children in Will following surrogacy arrangements

Trusts Discussion
1

My clients have 2 babies on the way from 2 different surrogate mothers in the US. Both babies will arrive unnamed in the UK on US passports in February/March. My clients have been told they cannot start the applications for parental orders until the babies have been in the country for 6 weeks. They’ve also been told they cannot name the children until they have parental orders.

So if I can’t name the children in their Wills, and the definition of child/issue only includes a child in relation to whom a parental order has been made following surrogacy arrangements (Human Fertilisation and Embryology Act 1990 s.30 and from 6 April 2010, HFEA 2008 s.54) how do I describe these children? Does anyone have experience of this situation?

Karen Shakespeare
Geoffrey Leaver

2

Truly, a modern Christmas story.

For the time being, try a discretionary trust with a couple of token (named) beneficiaries and power for the trustees to add beneficiaries.

Tim Gibbons

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3

Even once the parental orders have been made, will the babies retain “US
person” status?

Paul Saunders

4

I have drafted Wills for several clients in similar situations and use the following:

“subject thereto for such of my children as shall be living at my death to include any child of mine born through a surrogacy arrangement that I have commissioned whether or not I am treated as his or her legal parent at the time of my death and if more than one etc…”

Chris Pemberton

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