GESTATIONAL SURROGACY LAW MONTANA

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Gestational Surrogacy is permitted because no statute or published case law prohibits it and many intended parents have been successful in pursuing surrogacy to build their families.

Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Montana, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.

Below is a list of some of the most frequently asked questions about surrogacy in Montana.  

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Is Gestational Surrogacy Legal in Montana?

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

Is Traditional Surrogacy Legal in Montana?

YesThere 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?

YesThere 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.

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Same-Sex Surrogacy in Montana

Q: Is Same-Sex Surrogacy Legal in Montana?
A: Yes. Same-sex surrogacy is considered legal since there are no laws prohibiting it. Same-sex couples and LGBT+ intended parents will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg or sperm donor to complete the IVF procedure. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in Montana?
A: No. There are no additional laws impacting same-sex parents in this state.

FAQ’s

Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Montana?

A: 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.

Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Montana?

A: 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.

Q: When do Intended Parents Need to Complete an Adoption After Birth?

A: 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.

Q: Does Montana Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

A: 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.

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?

A: 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. 

REPRODUCTIVE LAW PRACTITIONERS

Susan G. Ridgeway
Missoula, MT
sridgeway@ailonlaw.com
(406) 532-2635

Katharine Hamilton
Bozeman, MT
kathatrine@hamiltonlawmt.com
(406) 600-2500


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