Gestational Surrogacy is permitted because no statute or published case law prohibits it.
Do courts grant pre-birth parentage orders? Yes
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
What are the bases for venue? The county where the child is born or the alleged parent resides, but the parties may consent to a different county
Do results vary by venue? Possibly
If yes, are motions to waive venue accepted? Yes
Is a hearing required to obtain a pre-birth order? Generally no, but depends on the judge. If a hearing is required, testimony by phone has been permitted in many cases.
Is a pre-birth order possible in Montana based on a Gestational Carrier’s plan to deliver in Montana, if no party lives in Montana? Probably
Will Montana Vital Records honor a pre-birth order from another state? Domestication may be required.
What is the typical time frame to obtain a birth certificate after delivery? Approximately 10 days.
How are same-sex parents named on the final birth certificate? Any parent can be designated “Mother,” “Father,” or “Parent,” consistent with the court’s orders.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes, but a post-birth order may be necessary.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father only? Yes
Can an international same-sex couple subsequently obtain a birth certificate naming only the biological father and/or both fathers, with no mention of the Gestational Carrier? Yes
Does an international same-sex couple have a choice as to whether they add the second father by adoption or parentage order? Yes, but for adoption they must satisfy any jurisdictional and waiting period requirements.
Can the non-biological parent in a same-sex couple obtain a second parent adoption when the child is born in Montana but neither of the Intended Parents lives in Montana? Yes, if jurisdictional and waiting period requirements are satisfied.
If no, will Montana Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes
Will courts in Montana grant second parent adoptions or stepparent adoptions to heterosexual couples living in Montana? Yes
Does the couple need to be married? No
Will courts in Montana grant second-parent adoptions or stepparent adoptions to same-sex couples living in Montana? Yes
Does the couple need to be married? No
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? Yes, Mont. Code Ann. § 40-6-106 provides that with the consent of a husband and wife, and insemination by a physician, the husband is the father and the sperm donor is not. This statute is likely unconstitutional to the extent it does not provide for the same legal treatment of donors and non-genetic spouses with regard to a same-sex married couple. Pavan v. Smith, 137 S. Ct. 2075 (2017).
Traditional surrogacy is permitted in Montana because no statute or published case law prohibits it. Courts may require a post-birth hearing or an adoption.
Susan G. Ridgeway
Missoula, MT
(406) 541-8882
ridgeways@hallevans.com
hallevans.com/
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