Estate planning and assisted conception

In our previous article ‘estate planning for solo parents’, we explored the legal considerations for solo parents. As the use of donor eggs and/or sperm and surrogates is becoming increasingly common, in this article I highlight how assisted conception can raise questions when it comes to estate planning.

The law relating to assisted conception

The creation and use of embryos, as well as assisted conception through donor eggs, donor sperm and surrogacy is governed by law, which can be fairly complex to wade through.

A key part of the process for any individual or couple embarking on fertility treatment using donor eggs or sperm is in giving informed consent on a range of legal issues.

You will be asked to make decisions on who will be the legal parent of a child born through the use of donated eggs, sperm or embryos if you are not married or in a civil partnership,  and on what will happen to the eggs, sperm or embryos if you lose capacity to make decisions or if you die.

These can seem like very daunting issues at what is already a fairly emotional time, but it is really important that they are given proper consideration as part of the process.

Who is the deemed the parent of a child born using donated eggs or sperm?

Although you will of course consider yourself as the parent(s) of your baby, no matter how they are conceived, the legal position is not quite as straightforward. For all couples, both same and opposite sex, whether they are married or unmarried, they will both be considered as parents of any child born via assisted conception, so long as the relevant consents are given when registering the birth. It is worth noting that this is only for births using donor eggs, sperm or embryos. There are different rules relating to surrogacy, which I outline later on.

The position is slightly different for solo parents. Here, only one parent will be registered, as sperm donors are not recognised under the law as parents.

Another point to highlight is that informal conception agreements are not regulated could lead to unintended parental responsibility.  For example, if you have an informal agreement with a friend to act as a sperm donor, they would be treated as any child’s father, whereas an anonymous donor from a regulated source would not be.

What is the legal position when it comes to surrogacy?

When it comes to the use of surrogates, the surrogate will be deemed the mother and if she is married her husband will be considered the father. This is true whether or not the surrogate’s egg is used in any treatment or not.

As such, the intended parents need to apply for a parental or adoption order once any baby is born, which can take some time.

Many couples and individuals make use of a surrogacy agreement. These are not legally enforceable in the UK, but can be useful in noting what has been agreed between the parties if there is a dispute down the line.

What happens to your eggs, sperm or embryos should you die?

If you wish to allow your eggs, sperm or embryos to be stored and used after your death, you can give consent for your named partner to use them up to 10 years from the date of your death. For gametes used after death by a surviving partner, it is possible for the deceased donor to be registered as the child’s parent if the surviving parent wishes to do so.

If not used by your named partner embryos, then 10 years and 6 months after your death, the clinic is required to remove and dispose of your donated embryos / gametes.

If you do not have a nominated partner, you can choose for the gametes to either be destroyed on your death; or to be donated to be used by another.

Drafting your will in the context of assisted conception

It is particularly important to consider guardians when drafting your will if you are undergoing assisted conception. If you are not married to your partner at the time of your child’s birth, they will not be deemed to be the co-parent of that child unless they are registered on the child’s birth certificate. As such, it might be sensible to appoint them as a guardian of the child in your will.

Gametes and embryos are not deemed as ‘property’ in the eyes of the law so it is not possible to either leave them a legacy in your will or to leave them as a legacy to, for example, your partner. This is why it is so important to complete the relevant consent forms at your clinic so that any embryos are used as you wish in the event of your death.