In Montana, gestational surrogacy is permitted, because there is no statute or case law that prohibits it.
Traditional (genetic) surrogacy is similarly permitted because no statute or case law prohibits it.
Is Surrogacy Legal in Montana?
Surrogacy Law in Montana
Montana Surrogacy Law: Types of Surrogacy
Are There Surrogate Requirements in Montana?
No specific legal requirements exist to serve as a gestational surrogate in the state of Montana.
Does Montana Surrogacy Law Allow for Pre-Birth Orders?
Parentage Orders: Courts in Missoula County and in some other counties grant parentage and birth registration orders both pre-birth and post-birth.
The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:
Yes
- Married heterosexual couples, using their own egg and own sperm
- Married heterosexual couples, using a sperm or egg donor
- Unmarried heterosexual couples, using their own egg and own sperm
- Unmarried heterosexual couples, using an egg or sperm donor
- Same sex couples, using an egg or sperm donor
- Single parents using an egg or sperm donor
The legal basis to recognize parentage is weak for a non-genetic intended parent who is not married to the genetic parent and the basis for a joint petition may be questioned.
No
For intended parents who lack a genetic relationship to the resulting child, the conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:
Yes
- Married heterosexual couples
- Unmarried heterosexual couples
- Same sex couples
- Single parents
The legal basis to recognize parentage without a genetic relationship to one of the intended parents is weak.
No
Whose names go on the birth certificate in Montana?
An intended parent may be listed as “mother,” “father,” or “parent” on the birth certificate according to what is requested by intended parents and ordered by the court.
It is possible for an international same-sex male couple to obtain an initial birth certificate listing the biological father and gestational surrogate as parents and then amend the birth certificate to remove the gestational surrogate and add the non-biological father, but a post-birth proceeding or adoption may be required. Adoptions have waiting periods, which the court may be willing to waive.
Surrogacy Conditions for Same-Sex Couples in Montana
Are There Options for Unmarried Intended Parents in the state of Montana?
Egg Donation Law
With the consent of a husband, wife, and sperm donor, and insemination by a physician, the husband is the father and the sperm donor is not. Mont. Code Ann. § 40-6-106. This statute is likely unconstitutional to the extent interpreted to not allow similar legal treatment of donors and non-genetic spouses for same-sex married couples, or to not allow similar legal treatment for egg donations.
State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in Montana*
Susan G. Ridgeway
Axilon Law Group
125 Bank Street, Suite 403
Missoula, MT 59802
Phone: 406.532.2635
Fax: 406.294.9468
https://www.axilonlaw.com/
