Montana surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in Montana?

Yes. Gestational surrogacy is considered legal because no statute or published case law prohibits it.

Is Traditional Surrogacy Legal in Montana?

Yes. There are no surrogacy laws in Montana prohibiting traditional surrogacy.  However, Montana surrogacy courts may require a post-birth hearing or adoption to establish the intended parents’ rights to their child.

Is Compensated Surrogacy Legal in Montana?

Yes. There are no surrogacy laws in Montana that regulate or prohibit a surrogate’s right to receive base compensation for her services; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted.  In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below: 

• Mock cycle compensation
• Embryo transfer compensation
• Starting medication compensation
• Monthly allowance for miscellaneous expenses
• Monthly Housekeeping budget
• Maternity clothing budget
• Medical expenses
• Travel to and from clinic/hospital
• Lost wages if applicable
• Child care if bed rest is required
• Term life insurance
• Medical insurance
• Independent legal counsel
• Psychological counseling
• Other depending on agency
• Creating a Montana Surrogacy Contract

Because there are no surrogacy laws in Montana, there are no specific legal regulations that must be followed when drafting a Montana surrogacy contract. However, intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure that each parties’ rights and interests are protected. The two lawyers will negotiate a contract that addresses the following:

• Rights and responsibilities of each party
• Potential risks and liabilities of each party
• Surrogate compensation  and other financial information
• Contact expectations before, during, and after the surrogacy process
• Plans for the hospital stay
• Steps for establishing the intended parents’ parental rights
• And more

Once this contract is complete and signed by both parties, the medical process of surrogacy can begin. 

Determining Legal Parentage in Montana

Pre- or post-birth parentage orders will usually be granted when at least one of the intended parents shares a genetic relationship to the child. These determinations, however, are left to the judge’s discretion, and so results may vary by county and judge. 

Although parentage orders may be obtained by a married or unmarried couple, or by a single intended parent, an unmarried intended parent who is not genetically related to the child may have a harder time securing parental rights. Second-parent adoptions (for intended parents who are unmarried) and stepparent adoptions (for intended parents who are married) are also available.  The availability of parentage orders to individuals and couples with no genetic link to a child is more often determined on a case-by-case basis.