Surrogacy brings a new life into a loving family. But before the medical process begins, a contract protects everyone involved.
In Montana, this document is essential. Because the state does not have a specific statute governing surrogacy, your contract establishes the legal rules for your arrangement. It acts as the safety net that courts look to when validating your intent and protecting your rights.
Whether you are intended parents or a prospective surrogate, understanding this legal framework helps you build a secure partnership. When you are ready to begin this life-changing journey, you can get free surrogacy information and speak with a trusted surrogacy specialist from American Surrogacy.
What Should be Included in a Surrogacy Contract?
Your surrogacy contract facilitates open communication about difficult topics—money, risks, and responsibilities—so there are no surprises later.
Every situation is different, but a robust Montana surrogacy contract generally covers these areas:
- Financial terms: This section provides a detailed schedule of the base compensation, monthly allowances for incidentals, and specific reimbursements for travel or lost wages. It clarifies who pays for specific items, such as insurance co-pays and maternity clothes.
- Medical and legal risks: The contract outlines the number of embryo transfers the surrogate agrees to undergo and acknowledges the risks associated with IVF and pregnancy. It also establishes that the intended parents are the sole legal parents.
- Social and lifestyle expectations: This includes agreements on communication frequency (texting, video calls, visits) and behavior during the pregnancy, such as diet and travel restrictions.
Working with an agency helps you navigate these topics with care, creating a surrogacy legal agreement that matches your shared values.
Legal Clearance before Transfer
You might be eager to start the medical process, but protecting your future requires patience. "Legal clearance" is the mandatory checkpoint passed before any medical procedures, such as the embryo transfer, can take place.
This clearance confirms that the contract is fully executed and that all parties are legally protected. The process generally follows these steps:
Step 1. Drafting: The intended parents' attorney creates the initial draft of the contract based on terms discussed during matching.
Step 2. Review: The surrogate’s independent attorney reviews the contract line-by-line to advocate for her rights, health, and financial interests.
Step 3. Negotiation: Attorneys negotiate on behalf of their clients if there are discrepancies. This ensures the agreement is fair.
Step 4. Execution: Once everyone agrees, the contract is signed and notarized.
Step 5. Notification: The attorneys send a clearance letter to the fertility clinic, allowing them to schedule the transfer.
This structure prevents anyone from assuming the physical or financial risks of a pregnancy without a signed contract.
Can Surrogacy Contracts be Enforced in Montana?
Intended parents often ask whether these contracts hold up in court. The answer in Montana is generally yes.
Montana is a "surrogacy-friendly" state, though it lacks a specific legislative statute that regulates surrogacy contracts. Instead, legality relies on judicial precedent—past court cases where judges upheld the intent of these agreements.
Courts in Montana routinely grant pre-birth orders to intended parents. A pre-birth order declares the intended parents as the legal parents before the baby is born. By granting these orders, the courts recognize the validity of the surrogacy contract.
Because there is no specific statute, the quality of your contract matters. It must be drafted by an attorney who specializes in Montana surrogacy laws to meet the state’s specific legal standards.
What Happens if a Surrogacy Contract is Breached?
In surrogacy, a "breach of contract" means one party failed to uphold their agreement. Breaches can range from minor misunderstandings to serious violations.
If a breach occurs, the contract outlines the remedies:
- Financial consequences: If a surrogate fails to adhere to a clause (for example, smoking during pregnancy), she may forfeit certain payments or be responsible for reimbursing costs.
- Legal action: If intended parents fail to pay the agreed compensation, the surrogate may have grounds to sue for the owed amount.
The goal of a good contract—and a good agency—is to prevent breaches. Mediation and support from your agency specialist resolve most issues before they escalate.
Fair Surrogacy Compensation and Payment Structure
Compensation is often the most complex part of the negotiation. In Montana, intended parents and surrogates are free to agree on an amount that works for both parties since there are no laws capping compensation.
Your contract protects these funds through a secure escrow account. The intended parents deposit the money before the pregnancy begins. This lets the surrogate know the money is ready and assures the intended parents that payments are released only when specific contract milestones are met.
The payment structure typically includes:
- Base compensation: A fee paid in monthly installments, usually starting after the confirmation of a fetal heartbeat.
- Monthly allowance: A set amount provided each month to cover miscellaneous costs like vitamins, gas for appointments, and over-the-counter medications.
- Contingency payments: Fees agreed upon for unforeseen circumstances, such as a C-section delivery, invasive procedures, or carrying twins.
Medical Decisions and Control During Pregnancy
The question of "control" causes anxiety for many intended parents. You are trusting someone else with your child’s development and want to ensure the best medical care. The contract balances oversight with the surrogate’s bodily autonomy.
The agreement allows intended parents to select the fertility clinic and treating physicians. It also grants them access to medical records and the right to communicate directly with the doctors.
No contract can force a woman to undergo a medical procedure against her will. A surrogate always retains the right to make decisions about her own body. This is why the matching process matters. We prioritize connecting you with someone who shares your views on medical interventions so you never have to rely on a contract clause to force a decision.
Termination and Selective Reduction Clauses
Termination and selective reduction are difficult topics, but they are essential for a complete contract. Selective reduction refers to reducing the number of fetuses in a multiple pregnancy to increase health outcomes.
Your contract will state the conditions under which the intended parents would request a termination—typically limited to severe genetic abnormalities or risks to the surrogate’s life.
While the contract can outline financial penalties if a surrogate refuses a request, Montana law protects a woman's right to reproductive choice up to fetal viability. You cannot physically compel a termination. This reality shows why honest, transparent conversations during the matching phase are necessary.
Lifestyle Clauses
A healthy pregnancy is a shared goal. Lifestyle clauses define what "healthy" looks like daily. These clauses set reasonable boundaries to protect the baby without controlling the surrogate’s every move.
In Montana contracts, provisions typically cover:
- Travel: Restrictions during the third trimester ensure the surrogate is near the delivery hospital.
- Diet and nutrition: Agreements to follow medical advice regarding diet.
- Substance use: Strict prohibitions on alcohol, nicotine, and non-prescribed drugs, often including an agreement to submit to random drug testing.
- Environmental hazards: Avoiding exposure to toxic chemicals.
Delivery Plans and Post-Birth Expectations
The birth is the finish line. The "birth plan" section of the agreement details exactly what happens when labor begins so you can focus on the joy of the moment.
It clarifies who is allowed in the delivery room—usually the intended parents and the surrogate’s support person. It also establishes that the intended parents will hold the baby first and make all medical decisions for the child immediately upon birth.
Post-birth expectations are also covered. For example, if the intended parents wish for the surrogate to provide breast milk, the contract will outline a pumping agreement. This compensates the surrogate for the time and supplies needed.
Insurance Requirements
Surrogacy involves significant medical costs. Your contract will require a valid insurance policy to cover the pregnancy and delivery.
Some health insurance policies cover a surrogate pregnancy, but many have "surrogacy exclusions." Your agency and attorney will review the policy. If her insurance cannot be used, the intended parents must purchase a surrogacy insurance plan that covers the surrogate’s maternity care.
Contracts also often require intended parents to purchase a life insurance policy for the surrogate. This provides financial protection for her family in the rare event of a life-threatening complication.
Agency vs. Independent Surrogacy
You may be considering an "independent" surrogacy arrangement to avoid agency fees. While legally possible in Montana, this removes the buffer that keeps your relationship with the surrogate healthy.
In an independent arrangement, you coordinate the attorneys, set up the escrow account, and manage the timeline. If a dispute arises over a contract term or payment, you must handle it directly with the surrogate. This can turn a partnership into an adversarial relationship.
When you work with an agency, we handle the logistics. We ensure you are matched with a surrogate who has been medically and psychologically screened. We coordinate with attorneys who know Montana surrogacy laws and manage the escrow account so money never becomes a personal issue. This allows you to focus on preparing to welcome your child.
Ensure Your Montana Surrogacy Contract Covers Every Detail
A surrogacy contract protects your future family. It provides the structure that allows you to relax, knowing your rights and your baby are secure.
You do not have to become a legal expert to navigate this process. We guide you through every step, connecting you with trusted professionals who understand Montana surrogacy.
Get free surrogacy information today to start with a dedicated team by your side.