Medical consent problems get resolved at the hospital door. School forms get sorted. A passport eventually issues. Guardianship applied for late is still guardianship. But if a parent dies while their child is not, in law, their child, the estate is administered on that basis — and nothing undoes it.
Three Ways It Causes Harm
Intestacy. Without a will, an estate is distributed by reference to legal relationships rather than actual ones. A child who is not the deceased’s child in law does not take as a child. In a surrogacy family that can mean a child raised from birth by two people inherits from one of them and not the other, with the estate passing instead to siblings, parents or more distant relatives who may have had no part in that child’s life. Class gifts. With a will, the danger is subtler and catches careful people: a gift to “my children” without definition is construed by reference to legal parentage, so a standard will can fail entirely to do what its maker obviously intended. The same risk runs through grandparents’ wills, which almost nobody thinks to check. Tax. Capital acquisitions tax operates by reference to the relationship between the person giving and the person receiving, with different thresholds applying to different relationships — and where a child is not a child in law of the person leaving them an asset, the applicable treatment may not be the one the family assumed. The difference is large enough to matter to ordinary estates rather than only substantial ones. This practice does not advise on tax: those questions go to your accountant or tax adviser and Revenue’s own guidance, before anything is signed.
Why It Is Almost Entirely Preventable
Because every one of those failures is a drafting problem, and drafting problems have drafting solutions. Name the child expressly rather than relying on a class. Define classes carefully where they are used. Appoint testamentary guardians, so the question of who cares for your child if something happens to the legally recognised parent is answered by you rather than by circumstance. Consider whether life cover, nominations or trust arrangements should be structured to pass value in a way that does not depend on parentage at all — frequently a useful tool in exactly this situation. Take the tax advice before finalising. Deal with it in both wills, and raise it with grandparents. None of this is complicated, none of it is expensive relative to what it protects, and none of it depends on the 2024 Act being commenced. If a parental order later becomes available and is granted, the wills should be revisited — but a family who waited for that and did nothing meanwhile has been carrying an entirely avoidable risk for years. The full page is here.
The uncomfortable arithmetic: the probability of a commencement order in any given year has proved lower than families expected. The probability of a death in any given year is not zero. Planning should reflect both.
When were your wills last looked at? 01 5827148.
Richard O’Shea — Solicitor & TEP
Solicitor at Mary Molloy Solicitors (established 1981) and a TEP of the Society of Trust and Estate Practitioners. The firm advises on the legal position of families formed through surrogacy and assisted reproduction — parentage, guardianship, birth registration, travel documentation, and the succession and estate planning consequences that the current gap in the law creates. This is a legal practice: it is not an agency, does not match or introduce surrogates, and takes no part in any commercial arrangement. Consultations by telephone, video or in person. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about Irish law relating to surrogacy and assisted human reproduction. It is not legal advice and does not create a solicitor—client relationship. Every family’s position turns on its own facts, and advice on yours requires a consultation.
The law is changing and this page has a date. The position described across this site is stated as at 31 July 2026. The principal surrogacy provisions of the Health (Assisted Human Reproduction) Act 2024 were not commenced at that date. Commencement orders can be made at short notice and will alter this position materially. Confirm the current position before acting.
This is a legal practice, not an agency. Mary Molloy Solicitors provides legal advice and representation. It does not operate as a surrogacy agency, does not match, introduce or recruit surrogates or intending parents, does not advertise for or on behalf of any surrogate, does not recommend or receive any payment from any clinic, agency or intermediary, and takes no part in arranging or facilitating any payment beyond the provision of legal services. Nothing on this site is an offer or invitation to enter any commercial surrogacy arrangement.
Foreign law and medical matters. Where an arrangement involves another jurisdiction, the law of that jurisdiction applies to what happens there and independent legal advice must be taken locally — nothing here states or implies that any arrangement is lawful or unlawful in any other country. Nothing on this site is medical advice, and questions about treatment, suitability or risk are for your treating clinicians.
Fees. Fees are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Tax. Nothing on this website is tax advice. Where parentage affects succession, gift or inheritance treatment, those questions belong with your accountant or tax adviser and with Revenue’s own guidance, and should be addressed before any step is taken.