Estate Planning for Intended Parents During a Surrogacy Journey
By the time you’re preparing for a surrogacy pregnancy, you’ve already made a lot of decisions. You’ve chosen professionals, worked through agreements, and thought about the family you’re building. Your estate plan should be part of those conversations before your baby arrives. For intended parents, you’re planning for a child in a way many new parents never have. You’ve created embryos and matched with a surrogate. You’ve probably paid some of your surrogacy related expenses already and have more scheduled to pay before the baby arrives. You’ve put months, maybe even years, into planning for this child. Why wouldn’t you complete that planning by including that child in your estate plan? For intended parents, planning should start with your Surrogacy Agreement. Your plan should account for situations before an embryo transfer, during the pregnancy, and after the birth. Your estate planning attorney and your reproductive law attorney can work together to account for those situations.
Start Before Embryo Transfer, Then Revisit the Plan
You can begin creating or updating your estate plan while your gestational surrogacy agreement is being prepared, even before an embryo transfer. That gives your attorneys time to review the documents together and address gaps while everyone is available to make decisions. If the pregnancy is already underway, you can still put a plan in place. Bring your existing estate documents, surrogacy agreement, and any parentage filings to your attorneys rather than assuming you need to wait until birth. Your plan should account for the stored genetic material created for the child you’re expecting and any future children, the payments and responsibilities under the surrogacy agreement, the state the child will likely be born in, and guardian choices and continued care for the child if the parents are unable.
What If an Intended Parent Dies During the Pregnancy?
There isn’t one automatic answer that applies to every surrogacy arrangement. The next steps depend on the agreement, the status of the parentage proceedings, the family circumstances, and the law in the jurisdictions involved. If one intended parent dies, the plan should address how the surviving intended parent will continue the journey. If the only intended parent dies or both intended parents die, the plan also needs to address who will seek authority to care for the baby after birth. Ask your attorneys to review the agreement’s death and incapacity provisions alongside your estate documents. Do they identify the same proposed caregiver? Is there a backup? Who will communicate with the agency, escrow provider, and hospital? Who will handle any necessary court proceedings? Do not assume that naming someone in your surrogacy agreement makes that person the baby’s legal guardian. A contractual designation, a guardian recommendation in a will, and a court order serve different purposes and have different levels of authority. The plan needs to explain how your chosen person gets from being named to being legally authorized to act.
Choose a Guardian Who Can Carry Out the Plan
Choosing a guardian means thinking about who you would want raising your child if no parent were available to do so. For intended parents, that conversation should include the possibility of caring for a newborn immediately after a surrogacy birth. Can your chosen person travel to the birth location? Are they prepared to care for a newborn, including a baby who needs additional medical care? Do they understand your family building plans and feel comfortable supporting your child’s understanding of their birth story? Ask your chosen guardian before you name them and include at least one alternate guardian. If you name a couple, discuss what you would want if they separate or only one can serve. If your first choice lives far away, consider who could provide immediate support while the longer-term arrangements are addressed. Under North Carolina law, a parent’s guardian recommendation in a will is a strong guide when there is no surviving parent, but the clerk makes the appointment and can choose someone else if that is in the child’s best interest. In a surrogacy journey, your attorneys should also review how parentage and the timing of birth affect the recommendation. Naming a guardian does not resolve an unfinished parentage matter.
Plan for the Money as Well as the Care
The person raising your child and the person managing your child’s inheritance do not have to be the same person. A trust can set instructions for managing money for your child’s benefit, including how funds can be used for care, education, and other needs. The trustee manages the trust property under those instructions. During a surrogacy journey, there is another financial question: what resources will be available before the baby is born? Review remaining payments, escrow arrangements, insurance, and who has authority to access the funds needed to meet obligations under the agreement. An inheritance intended for the child’s future does not address how an upcoming payment under a surrogacy agreement will be handled. Have your attorney review how your will or trust identifies children and beneficiaries, particularly a child who is expected through surrogacy but has not yet been born. Review beneficiary designations for life insurance policies and retirement accounts too, so they support the plan for managing your child’s money.
Incapacity Requires Its Own Instructions
An intended parent who is hospitalized or unable to make decisions still needs someone to manage their affairs. A durable power of attorney can address financial matters, like contract obligations and bill payment. A health care power of attorney addresses decisions about your own health care when you cannot make or communicate them. It does not authorize your agent to make decisions for the gestational carrier or automatically authorize decisions for your newborn. Your baby’s care needs its own legally appropriate arrangements.
What to Bring to the Planning Conversation
You do not need every answer before meeting with your attorneys. Bring the information that helps them connect the pieces:
- Your surrogacy agreement, including amendments and death or incapacity provisions.
- Existing wills, trusts, and powers of attorney, plus any parentage filings or orders.
- Names and contact information for proposed guardians, alternates, and financial decision makers.
- Escrow information, remaining payment obligations, insurance policies, and beneficiary designations.
- The expected birth location and any interstate or international arrangements.
Before the meeting ends, ask yourself one practical question: “If something happened tomorrow, would the people we’ve chosen know whom to call, where the documents are, and what steps they need to take?” Someone can be willing to help and still be left without the information or authority they need. Giving them a workable plan is part of preparing for your child’s arrival.
