We have seen many supply chain shortages arise during the COVID pandemic. But none is more surprising than the shortage of surrogate mothers. One creative way to get around the surrogate shortage is to use family members as surrogates.  

In our recent podcast episode, Mother Gives Birth to Daughter’s Child, we discuss the case of a 50-year-old Utah mother who acted as a surrogate for her daughter. This raises important legal questions: Is the surrogate mother the mother or the grandmother of the child? What Is the relationship to the child of the daughter that provided the egg and the son-in-law that fertilized the egg? Is the daughter the sister of the child or is she the mother?  

The Problem This Causes for Estate Planning Attorneys 

How would a court decide whether the mother that carried the child or the daughter that provided the genetic material is the true mother? When does it matter who is the mother or grandmother? 

The Utah rules of intestacy are a good example of the issue here. An intestate estate is one where the decedent passes without a will. In these cases, states have rules to determine how much property passes to which family members. §75-2-103(1)(a) of the Utah Code provides that property goes to the decedent’s descendents per capita at each generation.  

In the case at hand, the 50-year-old surrogate had eight children when she carried the ninth for her daughter. Had she not been a surrogate and died intestate, 1/8 of her estate would pass to each of the children. But now there is a ninth child — or is it a grandchild? Does 1/9 pass to each child — including the surrogate child? 

We used intestacy as an example, but what if the will says “to each of my children, pro rata?” An experienced estate planning attorney will define what the term “children” means within a 21st century context. They won’t use outdated and ambiguous terms like natural birth or biological children in wills or trusts. This attention to detail is key to making sure the distribution of your estate is as you intended. 


Get in touch for more information about a custom-tailored estate plan for your unique situation. Or call us today at (801) 951-0500. At Voyant Legal, we look forward to protecting what matters most to you.