For intended parent(s) embarking upon a surrogacy journey, there are many required documents that must be put in place - surrogacy agreement, possibly an egg, sperm or embryo donation agreement, and numerous legal forms signed at the fertility clinic or with the embryo storage facility. For many intended parents, a surrogacy journey may be their first time dealing with their own lawyer and such extensive legal documents.In addition to the legal documents required by state law or the fertility clinic to proceed with surrogacy, it is imperative that intended parent(s) consult with a trust and estates attorney in their state or home country to establish an estate plan for the soon-t0-be expanded family.Estate documents are governed by state law so typically, an attorney will need to prepare the applicable documents based on the state of where the applicable party lives.
Intended Parents' Estate Documents
A surrogacy contract typically provides generally what would happen to the child if both of the intended parents were to die as to who would be appointed as the guardian of the child
. The surrogate typically agrees to cooperate with any efforts that may be needed to vest parental rights with such guardian at the intended parents' estates expense. Making such arrangements to name a guardian is important to ensure that the surrogate would not have any parental rights to the child and that the child would avoid going into foster care. While the surrogacy contract may name a chosen guardian(s) selected by the intended parents, typically a separate appointment of guardian document
is required to be prepared in accordance with the applicable state law.In preparing an estate plan, the intended parents should explain to their attorney the method of conception (which could implicate either surrogacy or adoption laws), and whether donor genetic material was used as it is important to make sure that the intended parents' estate plan is broad enough not to exclude inheritance from child born via surrogacy or adoption or with donated genetic material.Intended parents may want to consult with their parents (the soon to be child's grandparents), to make sure grandparent estate documents
do not contain any exclusions for child born via surrogacy or adoption or with any donated genetic material as such an exclusion could prevent the future child to inherit from their grandparents.With the recent COVID-19 impacts on surrogacy preventing intended parents to possibly not make it to the hospital
in time for the birth of their children or other reason why an intended parent cannot attend the delivery of the child born via surrogacy, intended parents may need to execute additional power of attorney and health care advance directive documents
vesting temporary powers in a designee to care for the child until the intended parents can make it to the hospital to get their child.In addition to establishing an estate plan, intended parents with frozen genetic material should consider in their estate plan whether they authorize the use of the frozen genetic material after the death of one or both of the intended parents and whether any such posthumously conceived children can inherit from the deceased parent's estate. This is the concept of posthumous conception further discussed in my other blog article, Babies Conceived After The Death of A Parent – What to Consider with Posthumous Conception in Florida.
Stay tuned for a more detailed description from Florida estate planner, Jason Neufeld
, of why it is important for expecting parents to have an estate plan and what type of documents are involved in an estate plan.
Gestational Surrogate's Trust and Estate Documents:
While the intended parents should have an estate plan established or amended to reflect the surrogacy matter, there are estate planning documents that a surrogate will execute as well in connection with her commitment to being a surrogate. Typically, the intended parents will pay for the estate documents required for the surrogate or will allocate a certain amount of funds in the surrogacy contract the intended parents are willing to pay for her estate documents to be prepared.Within the surrogacy contract, a surrogate may agree to remain on life support (at the expense of the intended parents) in the event something horrible happens to the surrogate requiring life-sustaining assistance if the doctor determines that child can be safely delivered. Some surrogacy lawyers request that the surrogate and her spouse or partner execute a living will and medical power of attorney
before the embryo transfer where the surrogate agrees to remain on life support until the child she is carrying can be safely delivered.Surrogate's may also sign a health care power of attorney/health care advance directive
vesting the intended parents with all of the rights and powers relating to the child such as making medical decisions, discharging the child to the intended parents and allowing the intended parents access and full control to the child once born.Depending on the laws of applicable state where the surrogacy is taking place, the surrogate may need to sign a nomination of guardian
appointing the intended parents as the guardian of the child.Estate planning is a state-by-state analysis and for any intended parent or surrogate embarking upon a surrogacy matter, it is important to consider these additional documents that may be critical in ensuring that the child is property cared for financially and the wishes of the parties are property documented in accordance with the applicable state law.