Establishing legal guardianship may not be the first thing that comes to mind at the beginning of a surrogacy journey. You may be thinking about decorating a baby room, buying infant clothes or brainstorming baby names. Nevertheless, although establishing legal guardianship can take some time and finagling, it’s one of the things that should be at the top of your list when you’re preparing for your new baby. 

During the surrogacy process, intended parents should decide among themselves who the legal guardian of their child or children would be should they pass away before the process is complete. Why is it so essential to establish guardianship for your child? Legal clearance for the transfer of the newborn from the surrogate to the intended parents cannot be sent to the IVF clinic until either a will or a legal document providing guardianship information for a child is completed. 

Additionally, legal clearance is what will move the surrogate legal paperwork along. Legal consent also enables the surrogate mother to have a transfer scheduled and begin medications.

What Is a Guardian?

A guardian is an individual who has the legal authority and corresponding duty to care for another human being. A court-appointed guardian is responsible for taking care of a child or minor’s medical, property and personal needs. Guardians are needed when both of a child’s parents pass away before he or she is considered an adult, which is at age 18 in most states.

Guardians are usually appointed in three major cases:

  • Guardianship is needed for an incapacitated senior due to infirmity or old age
  • A developmentally disabled adult requires a caretaker
  • Guardianship is necessary for a minor

Things to Consider as an Intended Parent

As an intended parent for one or more children, you may view the choice of who to make their legal guardian a highly personal one. However, there are some general considerations to think about when appointing guardianship for a child, including:

  • The age of your chosen guardian: Considering the age and health of your intended guardian is crucial. Many assume their parents would fit this role nicely, but you want to be sure to evaluate whether they can handle the demands of raising a child.
  • Whether your chosen guardian shares your religious values: If religious doctrine is important to you and plays a role in how you raise your children, make sure your intended guardians have religious values that align with yours. You may also want to consider their political and moral beliefs.
  • Whether the proposed guardians have time to raise your children: An important question to ask yourself about your intended guardians is whether they have adequate time to devote to your child. How often do they work? Are they frequently out of town?
  • The location of your chosen guardian: Are they in the same town or state as you? In addition to the loss of their parents, will your children have to deal with moving to a new location?
  • Whether co-guardians are in the cards: If you want your children raised in a two-person home, make sure to name each member of the couple as a co-guardian.
  • Whether your chosen guardian is financially stable: Ideally, you’ll want to appoint guardians who are in a position to provide financially for your children.
  • Your chosen guardians’ family situation: Considering your intended guardian’s family situation is crucial to understanding how it can influence the rearing of your children. Do they already have children of their own? Is the potential guardian married or single?
  • Whether they’re willing to be placed in this role: This factor is perhaps the most obvious but overlooked consideration. If your intended guardians are unwilling or unable to be placed in this role, you should know before solidifying your decision.

How to Make Guardianship for Your Child Legal

To legally establish a child guardian, you — as the intended parent — will have to write it in your will. When you’re writing down your intended guardians for your child in your will, be sure to use guardianship language and name the order of successor guardians. Also, if the child’s parent passes away before the child reaches the age of majority, this documentation will allow the court to follow your wishes without the need for lengthy court intervention.

After your proposed guardians have confirmed that they agree with the request to assume responsibility of your child as outlined in your will, the next step is to contact a licensed attorney in your state. At this point, you and your attorney will have to discuss preparing the legal documents to name your chosen guardians.

Finally, we recommend drafting a letter to your proposed guardians in which you outline what is most important to you when it comes to raising a child. What values and beliefs do you hold dear?

Sample Guardianship Language

Once you’ve contacted your family law attorney, they will start the process of drafting an estate plan. In it, you’ll have the opportunity to employ guardianship language to make sure everything you want is in writing. For example, your guardianship language could look something like this:

“If my husband, Joe Smith, does not survive me, and it is necessary to appoint a guardian, I appoint, in the order named, the following successor Guardians:

First, Mary and Jacob Jones of Syracuse, New York

Second, Sara and Michael Adams of New Haven, Connecticut”

Take Your First Steps With Western Fertility Institute Today

Want to start the journey to establishing guardianship for your child? Western Fertility Institute is here to help! We assist intended parents across the globe in building their families and can even obtain all documents needed for your child, including visas, birth certificates and more. It’s also important to note that, at Western Fertility Institute, we use the term “surrogate” to refer to all our gestational carriers.

We can also help you find a fertility attorney when the time is right. Our team of experts strives to provide a supportive, empathetic and safe environment utilizing the latest technology to help you every step of the way on your journey to a healthy pregnancy.

Contact Western Fertility Institute at 888-261-4574 for more information about the legal process and to speak with a member of our team.

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