Surrogacy – Case Study

Surrogacy – Case Study

Mike and Marie have been trying to conceive for a number of years with IVF treatments all failing, and now they are looking to have a surrogacy arrangement.

Is this legal in the UK? Maria asks.

Altruistic surrogacy arrangements are the only permitted surrogacy arrangement in the UK; commercial surrogacy is illegal.  Surrogacy agreements, even those drawn up, are not legally binding but may help set out the framework for the future.

Mike wonders where they should start to make enquiries.

A specialist fertility clinic will be able to point them in the right direction; at the same time, consideration must be given to obtaining specialist legal advice.

Will it be costly, asks Mike, as finances are stretched?

In the UK, the surrogate mother is permitted to receive her reasonable expenses and this must be clear from the outset.  The legal costs must also be factored into this, and advice at an early stage is paramount.

Following detailed enquires, Mike and Maria have decided to embark on the surrogacy route using a surrogate in the UK; they obtained specialist legal advice and all the procedures were followed.  On birth, however, the surrogate is refusing to hand over the baby to the intended parents, and Mike and Maria are now distressed with this.

I would expect Mike and Maria to have made urgent contact with their solicitor over the sudden change of plans by their surrogate, and I would expect the Parental Order to be lodged without delay, with a full statement detailing the events.   A Cafcass Officer would then be appointed to explore the issues between the parties and the reasons behind the surrogate’s change of mind.  If the surrogate’s position remains unchanged, then it is likely that the court would list the matter for a Final Hearing to decide on the application made by the intended parents.

Did you know facts:

  1. There are only a small handful of lawyers in the UK practising Fertility and Surrogacy law.
  2. Commercial Surrogacy is illegal in the United Kingdom.
  3. The laws on altruistic surrogacy in the United Kingdom are governed by the Human Fertilisation and Embryology Act 1990.
  4. Data on Surrogacy Arrangements in the United Kingdom is very hard to obtain, with no centralised system or storage of that information.
  5. The number of Parental Orders is increasing in the family courts and Cafcass Officers are now receiving tailored training to deal with these applications.
  6. The precise figures on arrangements abroad are unknown, but past and present cases indicate that intended parents from the UK are travelling overseas for surrogacy.
  7. The surrogate is the only legal parent in the surrogacy arrangement until a Parental Order is made.
  8. Prior to 1985 there was no Act to cover the area of Surrogacy.
  9. Around 1,750 babies in the UK are born each year using donated sperm, eggs or embryos.

For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer. 

The Importance of having a Will – Supermarket Survey

The Importance of having a Will – Supermarket Survey

A large supermarket recently carried out a survey which indicated that 91% of us think about our mortality regularly and a third of us speculate on our own death at least once a week.

But whilst some of us clearly do think about life after death, the majority don’t have a Will. The reluctance to plan for death could leave those you care about most in an exposed position at a time when they are already vulnerable.

Obtaining advice in relation to your Will might not be as expensive as you first think and may even put your mind as ease. Your Will is very likely to be the single most important document to take effect on your death so it is certainly worth giving some thought to it. Your Will can dictate:

  • to whom your estate (i.e. what you own when die after debts and funeral have been paid for) should pass (is it your spouse, partner, your children, a charity or perhaps a mix?);
  • who takes responsibility for any children you may have who are under the age of 18;
  • who should live in your house when you have died or whether it should be sold; and
  • who takes ultimate responsibility for ensuring that what you own when you die passes in accordance with your Will.

If you die without a valid Will in place, the intestacy rules will apply and it is those rules which dictate who inherits your estate, regardless of your wishes. To ensure your assets pass in the way that you wish, the best way to achieve this is to put a valid Will in place. Then all you have to do is to remember to keep it up to date!

For more information, or some preliminary, confidential advice contact Joan Pullin, Solicitor in our Private Client team on 01297 21612 or email joan.pullin@everys.co.uk.

Making a Will as New Parent

Making a Will as New Parent

I made my first Will eight years ago, when times were simpler. My only concern was who would receive my David Campese-signed World Cup Final program and Fender Telecaster. Since then I have married, own a property with my wife and have two young children. There are now three people more important than anything else. More important than a Fender.

I want to ensure that if anything should happen that my wife and children are provided for and protected. However, if an individual dies without leaving a Will the Intestacy Rules apply. These are far from ideal in many cases.

Under the Intestacy Rules, if you die leaving a spouse and children, the surviving spouse will receive the first £250,000 from your estate outright, with an additional sum of half of the remainder. The other half is left upon trust for your children to inherit at the age of 18. Meanwhile, if you are unmarried at the time of death, the intestacy rules do not provide anything at all for the surviving partner, and the entire estate would pass to your children.

In the event that both spouses die, their estates would pass entirely to their children, but again to inherit at the age of 18. I, for one, would not have been in a position to handle a significant inheritance at this age, particularly following a potentially traumatic event. Furthermore, the intestacy rules do not automatically appoint guardians for children where both parents die. This can result in messy inter-family litigation, and the children may ultimately end up in the care of individuals you would not have chosen.

When parents of young children ask for my advice regarding their Wills, there are three things I ask them to consider. First, is the appointment of guardians. Many will wish to appoint siblings or parents, though you can appoint anyone to act in this position. It is also worth ensuring that the Executors and Trustees of your estate have the power to release funds to assist with the financial burden of acting as guardian.

The next will be the appointment of Executors and Trustees. These are the individuals who administer the estate and control the funds until such time as your children ultimately inherit. Though these can be the same people as the guardians, it is worth considering independent individuals, to ensure there is some neutrality in the management of the funds.

Finally, there is the age at which the children are to inherit. You can impose a specific age, such as 21 or 25. However, I often advise parents to consider the flexibility provided by a Discretionary Trust. Under a Discretionary Trust your trustees will have the discretion to decide as and when the beneficiary is to receive part of their inheritance. For example, part may be used at the age of 18 for University fees, part towards the purchase of a house at 23, and the entire amount at a time when they are more financially responsible. The trustees may also make a loan to the beneficiary for the purchase of a property, to help protect the inheritance from divorce or bankruptcy.

I am aware that becoming a parent is a life changing and financially demanding experience. However, a properly drafted Will is something else to add to the list of travel systems, stair gates, sleep suits, moses baskets and baby monitors.

If you are an expectant parent (or grandparent) and wish to discuss this further then please contact myself, Will Vine, or a member of our team from your local Everys office.