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STATE SURROGACY LAW:

Montana Surrogacy Laws

Overview

Montana has no statutes or case law that address surrogacy, but both traditional and gestational surrogacy arrangements take place.

Types of Surrogacy Available in Montana

Can a parentage order be obtained for the following?

Although traditional surrogacy is not prohibited in Montana, many attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

It is possible for any of the above to be declared the parent(s) of the child via a court parentage order, however, a stronger basis in the law exists to grant parentage when a parent is genetically related to a child or married to a parent who is genetically related to a child. 

How are Intended Parent(s) Listed on the Birth Certificate?

To be added.

Rights of Egg or Sperm Donor(s)

According to Mont. Code Ann. § 40-6-106, a husband is regarded as the father and the sperm donor is not, if the husband and wife consent and the insemination is done by a physician. There is no case law regarding donation agreements, but donation agreements are recognized. 

Surrogacy Steps in Montana

Surrogacy Process in Montana

Select your agency

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and complete legal contract

Begin IVF cycle with surrogate

Pre-birth order

Montana allows pre-birth orders to be filed. Proceedings begin after first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

Up to 10 days

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Although there’s no statute or case law addressing surrogacy contracts, surrogacy contracts in Montana have been recognized and enforced by its courts.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Montana has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys

Birth Orders

Do courts issue pre-birth orders?

YES in Missoula County and others

Do courts issue post-birth orders?

YES in Missoula County and others

Are hearings required to obtain either pre- or post-birth orders?

VARIES.

If a hearing is required, do all parties need to attend?

VARIES. Participation by phone may be possible.

Does process vary by county?

YES

Bases of Venue

What are the bases of venue?

Where the child is or will be born or where any of the parties to the surrogacy arrangement reside

Can you file a motion to waive venue?

YES

International Issues

International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does Montana have any residency requirements for out-of-state or International Intended Parents?

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can they obtain a birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 8 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Susan G. Ridgeway
Axilon Law Group, PLLC
125 Bank Street, Suite 403 
Missoula, MT 59802 
(406) 532-2635
sridgeway@axilonlaw.com
www.axilonlaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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