Whilst the process of IVF is a widely-known fertility practice in the UK, the laws surrounding the procedure often go both unacknowledged and unconsidered, when making a Will.
Many people aren’t aware that the conception of a child through IVF actually has the potential to cause serious complications, especially when it comes to issues of inheritance, and establishing legal parenthood.
Therefore, it is important to be aware of the following when making or disputing a Will where matters such as, the inheritance rights of IVF children, issues surrounding legal parenthood and their potential role in inheritance disputes, will need to be considered.
Why is establishing ‘Legal Parenthood’ important for inheritance?
Establishing whether or not you are your child’s ‘legally’ yours or that a parent classes as your ‘legal parent’, is particularly important when considering inheritance and making a Will – especially if you are considering challenging a will under the rules of intestacy or are uncertain of the security of your own inheritance.
For example, whether or not someone is ‘to be treated as a parent’ legally, will drastically determine if the child will have any right to receive their share of the parent’s estate, where there is no will. And even if the deceased leaves a will, anything gifted in the Will addressed to the deceased ‘children’, relies on the child being legally considered a ‘child’ of the deceased themselves.
These complications have the potential to cause disagreements, especially in cases where there are no existing parental orders or adoptions certificates. As this means legal parentage hasn’t been confirmed before the parent has died.
What is the law on ‘Legal Parenthood’?
- English law states that the woman who gives birth to the child is the only person that can be considered the ‘legal mother’.
- If the woman is married or in a civil partnership then her spouse/partner will be considered the ‘legal father/second parent’.
- Someone can only be legally considered a person’s ‘child’ in English law, if they are their biological child or adopted.
So in the case of surrogacy or IVF, the child’s biological mother will remain the ‘legal mother’ of the child, until the request of the child’s ‘intended parents’ for parental orders or adoption has been granted. This is why confirming parentage and obtaining parental orders for children born through IVF and/or via surrogacy as soon as possible, is particularly crucial.
Do IVF children have inheritance rights?
The time at which a child is conceived has a large impact on their inheritance rights and rights to make a claim against an estate.
If a child is conceived during the lifetime of a couple and there is clear evidence establishing them as the childs ‘legal parents’, such as parental orders or an adoption certificate – then the child will have inheritance rights.
If a child is conceived after the deceased has passed, they may not have any inheritance rights or claim on the deceased estate. This is because:
- UK law doesn’t allow the deceased to be ‘treated as a parent’, if the use of the sperm or embryo collected falls outside of the consenting party’s lifetime.
- Therefore, even if the deceased is the named parent on the birth certificate, it does not guarantee that child inheritance rights or provide grounds to make a claim on their estate.
However, if the deceased parent passes away during the pregnancy of the child conceived through IVF and there is clear proof of legal parentage, the child will have inheritance rights. This is because:
- The deceased was able to give consent, at the time of the child’s conception.
- The child was conceived during the lifetime of the couple (the child’s intended parents).
If the child was conceived using a sperm donor (provided that the donor attended a clinic licensed by the Human Fertilisation and Embryology Act 2008), they will not have any inheritance rights against the donor’s estate. This is because:
- The donor won’t not be named on the child’s birth certificate, or have any parent responsibility and are not liable for future inheritance claims.
Note: if the child is conceived via an unlicensed clinic, the sperm donor could potentially be liable for future child maintenance and inheritance claims.
If any of the topics mentioned in this article apply to you or your family, IDR Law’s Claim Checker is a great place to start for further guidance.
The tool asks a series of questions covering the typical issues people face in an inheritance dispute situation. It provides detailed guidance to help users understand whether they have the right to dispute and then advises on the likelihood of success based on their situation.
