Yes. Gestational surrogacy is considered legal because no statute or published case law prohibits it.
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.
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:
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:
Once this contract is complete and signed by both parties, the medical process of surrogacy can begin.
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.
Below is a list of some of the most frequently asked questions about surrogacy in Montana.
There are no surrogacy laws in Montana specifically stating that contracts are enforceable; however, courts are generally favorable to the process, implying that these contracts would be upheld in a court of law if a dispute were to arise.
No. There are no particular surrogacy laws in Montana for international intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
While most intended parents in Montana can obtain a pre-birth parentage order in their surrogacy journey, if a court does not grant a parentage order, an adoption may be needed after birth. In addition, those completing a traditional surrogacy may also need to complete a post-birth adoption.
Yes. Montana does allow for second-parent adoptions. Therefore, unmarried intended parents who cannot obtain a parentage order can complete a second-parent adoption, while married intended parents can complete a stepparent adoption.
In most Montana surrogacies, the use of a donor egg, sperm, or embryo does not affect the availability of a parentage order. However, because this availability depends upon the court overseeing the surrogacy, this will always be on a case-by-case basis.
No. There are no additional laws impacting same-sex parents in this state.
Susan G. Ridgeway
Missoula, MT
ridgeways@hallevans.com
hallevans.com
(406) 532-2635
Katharine Hamilton
Bozeman, MT
katharine@hamiltonlawmt.com
embabylaw.com
(406) 600-2500
