Estate Planning During Your Surrogacy Journey
While you're helping another family grow, let's make sure your family is protected, too.
Becoming a gestational surrogate is an incredibly generous commitment. You spend months preparing for the journey - from medical screening and contracts to medications, embryo transfer, appointments, and ultimately, pregnancy and delivery. One piece of planning that can be easy to overlook is your own estate planning. We know “estate planning” can sound like something you don't need until you're older or have accumulated significant assets. But some of the most important estate planning documents have nothing to do with how much money you have. They are about making sure the people you trust can step in and take care of you, your family, and your day-to-day life if you are ever unable to do so yourself. Pregnancy is an especially important time to have those protections in place.
Why does estate planning matter during a surrogacy pregnancy?
Your Gestational Surrogacy Agreement addresses a lot of important “what ifs” between you and the intended parents. But it isn't a substitute for your own estate plan. Your estate planning documents answer a different set of questions: Who can make healthcare decisions for you? Who can manage your finances if you're hospitalized? Who can pay the rent/mortgage, deal with insurance, or handle other financial matters if you're temporarily unable to do those things yourself? And what happens to your property and your kids if something happens to you? Those questions matter all the time. During pregnancy and delivery, they deserve a little extra attention.
What is a Healthcare Power of Attorney?
A Healthcare Power of Attorney allows you to choose someone you trust (often a spouse, partner, family member, or close friend) to make healthcare decisions for you if you can't make or communicate those decisions yourself. This is particularly important during a surrogacy pregnancy because you are the patient. Your surrogacy agreement may address medical decisions relating to the pregnancy, but your Healthcare Power of Attorney is about making sure someone you choose has the legal authority to advocate for you and your healthcare wishes if you can't speak for yourself. Note – Your Gestational Surrogacy Agreement may contain an obligation for you to obtain this document, often at the intended parents’ expense. We can review your contract and advise you.
What is an Advance Directive?
An Advance Directive allows you to provide instructions about the medical care you would or would not want in certain serious circumstances. Think of these two documents as working together: your Healthcare Power of Attorney identifies who you trust to speak for you, while your Advance Directive helps communicate what you would want them to say. Pregnancy can also affect how certain Advance Directive provisions operate under state law, which is one more reason to review these documents when you're preparing for a surrogacy pregnancy. Note – Your Gestational Surrogacy Agreement may contain an obligation for you to obtain this document, often at the intended parents’ expense. We can review your contract and advise you.
Why is a Durable Financial Power of Attorney so important for a surrogate?
This is one people sometimes overlook, and it can be incredibly important. A Durable Financial Power of Attorney allows you to authorize your spouse, partner, or another trusted person to handle financial and administrative matters on your behalf if you become incapacitated. Imagine that a pregnancy or delivery complication requires an extended hospital stay or leaves you temporarily unable to handle your normal responsibilities. Your own family's life keeps moving. There may still be a mortgage or rent to pay, insurance issues to address, accounts to manage, forms to sign, and other financial matters that need attention. A properly prepared Financial Power of Attorney can give the person you choose the legal authority to step in and handle the matters you've authorized on your behalf. Your surrogacy agreement may address reimbursements, compensation, medical expenses, lost wages, and other financial aspects of the surrogacy journey. But it doesn't give your spouse or partner broad authority to manage your financial life if you can't do it yourself. That's what your Financial Power of Attorney is for.
Do I really need a Will?
A Will is especially important because you have children of your own. A Will allows you to say who should receive your property, who should be responsible for administering your estate, and how you want certain matters handled after your death. Your broader estate plan can also address one of the most important questions for parents of minor children: Who would you want to care for your children if you weren't here? You may be young. You may be healthy. And we certainly hope these documents never need to be used. But good planning isn't about expecting the worst. It's about making sure the people you love aren't left trying to figure out what you would have wanted during an already difficult time.
When should I do this?
Ideally, before embryo transfer or early in your pregnancy. You've already put tremendous thought into the legal, medical, and practical details of carrying a pregnancy for another family. Taking a little time to put your own documents in place gives that same thought and care to your family. Surrogacy is about helping someone else build their family. Your estate plan helps protect the family waiting for you at home.
