It’s a good idea for any expecting parent to have an estate plan in place, but it’s critical for intended parents using surrogacy to create their family. If the intended parents were to pass away while the surrogate was pregnant, their Will serves the dual purpose of naming a guardian for the baby and also authorizing their Executor to fulfill their obligations to the surrogate contained in the surrogacy agreement.
Most surrogacy agreements will require the intended parents to execute a Will prior to the surrogate becoming pregnant, and New York law requires that in order for the surrogacy agreement to be enforceable.
Although not required by law, it’s also a good idea for a surrogate to have a Health Care Proxy, Living Will and/or Advance Directive in place which specifies an agent to make medical decisions for her if she becomes incapable of making them for herself and also specifies instructions regarding whether she should be kept alive on life support if she suffers brain death while pregnant. Many surrogacy agreements will require a surrogate to have these documents in place before she becomes pregnant.