Answers to Frequently Asked Questions

General Questions About Fertility Law

We offer legal services to Montana residents, regardless of the city in which they reside. We also represent out-of-state clients who require a Montana-based attorney when there are significant connections to Montana, such as the place of a surrogate birth. Thanks to technology, we are able to perform most legal services with email, video, and telephone calls.

Montana only. With the way the internet works, however, we are aware that anyone from around the world can view this website. Nothing in this website shall be construed to mean that Embaby Fertility Law, PLLC, practices in jurisdictions where it is not admitted to practice law or attempting to solicit business from clients in any jurisdictions other than Montana.

Fertility law is a complex and rapidly evolving area of law. It may be tempting to use a friend or family member who is an attorney to represent you, especially if you have been offered a discount. However, it is essential that each party have their own legal counsel experienced in fertility law. Only experience can provide an attorney with the requisite legal knowledge, skill, thoroughness, and preparation necessary to undertake representation in this field. Significant experience in fertility law (such as 50+ fertility law matters) is recommended by certain industry guidelines. This is because attorneys who specialize in fertility law often stay on top of current laws, medical developments and best practices.

We offer flat-fee and hourly pricing for our services, so our clients know what to expect and can budget accordingly. Please contact our office for further pricing information.

To ensure timely payment, a retainer is required upfront before any legal services are provided. If there are any unused funds at the end of your representation, we will refund that balance to you.

We take great pride in providing thoughtful and competent legal representation. It is our objective to make complex legal journeys feel simple, approachable, and rewarding.

Please fill out the applicable form on our Contact page. If we believe we may be able to assist, we will respond and schedule a time to connect. We may not be able to represent you if we have a conflict of interest, if our schedule does not permit, or if we are not located within your jurisdiction.

An attorney-client relationship is not established with a prospective client until: (1) the client has agreed in writing to hire us and signed a written Attorney-Client Agreement, which we will provide, (2) we have specifically agreed to act as the client’s attorney and also signed the written Attorney-Client Agreement ourselves, and (3) the client has paid the required retainer. Unless both you and we agree to the terms of and sign a written Attorney-Client Agreement and you have paid the retainer or deposit, you do not have an attorney-client relationship with Embaby Law Firm, PLLC. Nothing in this website, nor the act of sending any information or email to Embaby Law Firm, PLLC, creates an attorney-client relationship.

 Surrogacy Law Questions

We like to think of surrogacy as a two-step process. The first step involves drafting, negotiating, and signing the agreement. Each agreement is tailored to fit the specific needs of the parties. The agreement memorializes the expectations and intentions of all parties with regard to the pregnancy, parenting, reimbursement of costs, etc. It is important to clarify each party’s role in the agreement because Montana law presumes that the woman who gave birth to a child is the mother of the child. Montana law also presumes that the husband of the woman who gave birth is the father. These presumptions are incorrect in a gestational surrogacy arrangement. The parties to the agreement include the intended parent(s), the surrogate, and the surrogate's partner if she has one.

The second step is the legal proceedings (also known as the “prebirth order” or “PBO” phase) which establish parental rights for the intended parents and disestablishes any parental rights which may arise for the surrogate and her spouse. These proceedings are private, sealed from the public, and provide the intended parent(s) with a formal court order. Because babies arrive on their own timeline, it is preferred that these proceedings are completed during the second trimester of pregnancy, well before the child’s due date. Depending on the judge, the court may not require that the parties attend a final hearing, especially when all parties are represented by counsel. Having an experienced fertility lawyer is helpful during the PBO phase, as Montana lacks statutory guidance on how to properly obtain an PBO, and only an attorney with experience may know how to obtain one successfully.

Generally, a surrogacy agreement should address the following: 

• The surrogate’s base compensation (pregnancy payments)

• Additional money the surrogate may receive, such as payment for certain medical procedures or reimbursement for surrogacy-related expenses 

• The surrogate’s health insurance policy, co-payments, deductibles, and reimbursement for out-of-pocket medical expenses

• How much will be held in escrow and when disbursements will be made

• Responsibilities and expectations of all parties during the pregnancy, childbirth and after birth

• Agreements as to sensitive topics, such as medical termination of a pregnancy, selective reduction, and dispute resolution

• Risk and liability associated with embryo transfer, pregnancy and childbirth

Considering that a surrogacy arrangement covers a long span of time, usually before an embryo is transferred until several weeks or months after childbirth, there are a lot of “what-if’s” to anticipate along the way. This is why it is important to work with an attorney with experience in surrogacy and fertility law who can help plan ahead.

It is recommended that each party (or couple) have their own legal counsel experienced in fertility law. This ensures that each party is fully informed of their rights and receives advice specific to his or her individual needs. It actually strengthens the agreement when everyone has their own counsel, as it may be more difficult to invalidate provisions of a contract if each party was represented by an attorney. In addition, some medical clinics require confirmation that each party was represented by an attorney before the contract was signed.

Our prices vary depending on the scope of our work. Visit our Contact page and fill out our inquiry form so that we can get back to you about pricing once we have more information about your needs.

Montana is considered a surrogacy-friendly state.  Though Montana does not have any statutes that specifically address surrogacy, there is no law in Montana that prohibits it.

Because a surrogacy contract is generally 35+ pages single-spaced (there is a lot to cover!), it generally takes two to three weeks for the initial agreement to be drafted, reviewed by the intended parents, reviewed by the surrogate and her attorney, negotiated, fine-tuned, and signed and notarized by all parties.

It is standard for the intended parents to pay for the surrogate’s legal fees to avoid the arrangement becoming a financial burden for the surrogate and her family. Making sure that the surrogate has an experienced fertility lawyer strengthens the contract by minimizing the risk of invalidation by an empathetic court, so it is a wise investment for intended parents.

When we hear the term “surrogacy,” we envision a woman carrying a baby for someone else. But is the surrogate genetically related to the baby? It depends. The difference between a gestational and traditional surrogate boils down to one question: who supplied the egg?

In traditional surrogacy, the surrogate is also the egg donor, meaning she is biologically related to the baby she has agreed to carry for someone else to raise after the birth. Some parents gravitate towards traditional surrogacy because they are in need of both a surrogate and an egg donor in order to have a baby. Utilizing the assistance of a traditional surrogate can keep medical costs down. 

In gestational surrogacy, the egg used to create an embryo is provided by the intended parent(s), which can be from the intended mother herself, or from a donor egg. The intended parents’ embryo (or embaby, as we like to call it) is then implanted into the gestational carrier, who has no biological connection to the baby.

In a gestational surrogacy arrangement, the surrogate has no biological connection to the baby, so the intended parents have a strong argument should they ever need to go to court to enforce their parental rights. After all, they would not have otherwise agreed to transfer their embryo into another woman’s body! This is why it is recommended to obtain a prebirth order prior to the baby’s arrival, so that a court has already determined the legal parents and signed an order.  

A traditional surrogacy carries more risk, however, as the surrogate is also the egg donor and has a biological connection to the child.. If a traditional surrogate decides she wants to keep the baby, the intended parents would need to ask a court to make a determination of their parental rights in their favor, which may be more challenging. A court could decide that the traditional surrogate and the intended father are the parents, thus leaving the intended mother out of the picture! For this reason, gestational surrogacy is generally recommended because it carries less risk and greater protection for the intended parents.

Costs can increase if translation is needed. Also, intended parents may also need to consult with an attorney in their home country.

Yes! We use our experience, having assisted numerous intended parents and surrogates already, to guide our clients along the way, even if they elect not to work with an agency. While we love working alongside agencies, some parties choose to work independently for a variety of reasons. Some are surrogacy veterans, and others want to save on costs. An experienced fertility lawyer can help to make sure certain requirements are met and can guide parents through the complicated surrogacy process.

Surrogacy can be an expensive endeavor. To save money, some people elect to find their perfect match without the assistance of a surrogacy agency. While electing not to use an agency can cut down on overall costs, it does require more time and resources for the attorneys involved. Because of this, the legal costs can be slightly higher for those working independently versus those using an agency.

We provide the applicable government authorities with information in advance so that they are able to complete the birth certificate with the legal parents’ names.

 Embryo, Egg, and Sperm Donation Law Questions

Whether the parties are known to one another or anonymous, we work with either the intended parent(s) or the donor(s) to draft a donation agreement. We are always sensitive to the emotion and logistics of the unique situation, customizing the legal agreement to individual preferences for anonymity, privacy, and future contact.

With multiple parties and attorneys involved, it generally takes two to three weeks for an initial donation agreement to be drafted, reviewed, fine-tuned, and signed and notarized by all parties. Once signed, one of the attorneys will notify the cryostorage facilities and fertility clinics that ownership of the donated genetic material has been legally transferred. It is vital for our clients to let us know if they need a contract completed by a particular date, as having clear expectations allow the attorneys to prioritize accordingly.

Generally, an egg or embryo donation agreement should address the following: 

• The number and location of embryos to be donated and any identifying information about them

• The agreement that all parties intend for the recipient parent(s) to raise and be the legal parent(s) of any baby born of the donation

• That all parties have undergone mental health counseling if required by their medical provider

• The types and amount of expenses the recipient parents agree to reimburse the donor, such as legal fees, medical costs for egg retrieval, embryo storage facility fees, required screening or testing costs, mental health counseling, and transport expenses

• Desire and nature of future communication and contact with each other 

• Risk and liability associated with egg and embryo donation

Each donation arrangement is as unique as the parties and embryos involved. This is why it is important to work with an attorney with experience in fertility law.

It is recommended that each party have their own legal counsel experienced in fertility law. This ensures that everyone is informed and advised of their rights with his or her best interests at heart. This way an attorney can evaluate your arrangement and provide legal advice that is specific to you. In fact, some medical clinics will not perform any procedures until they have confirmation that experienced fertility law attorneys have drafted and reviewed the donation agreement.

Our prices vary depending on the scope of our work. Visit our Contact page and fill out our inquiry form so that we can get back to you about pricing once we have more information about your needs.

It is unlikely, but it is possible. To avoid this, some intended parents, especially same-sex couples, decide to formalize their parental rights by obtaining a prebirth or postbirth order (also known as a “PBO”) from a court. This is because a birth certificate is not determinative of a person’s parental rights. Only a judge can make a final determination as to the parental rights of a child.

If intended parents are in need of egg or sperm, most often they are able to obtain genetic material from anonymous donors using a sperm or egg bank. When this occurs, an attorney may not be needed to draft a donation agreement. However, when parents want to use a known donor, such as a friend or family member, an attorney is needed to memorialize each person’s expectations, rights and responsibilities.

 Parentage Establishment Questions

Generally, a petition to establish parental rights (also known as obtaining a “prebirth order” or “PBO”) is filed with a court by one party’s attorney. This petition is a request for a judge to sign an order making a determination about who the child’s legal parents are.

It depends on the judge, but usually not if all parties are represented by experienced fertility counsel and a request for a prebirth order is made before the child is born. However, a judge may decide to have a hearing if the baby is already born or if one or both parties is not represented by an attorney. This is why independent legal counsel experienced in fertility law can streamline the PBO process.

It depends on the court, but usually within one or two weeks from when all PBO documents are filed.

The answer is just as it sounds. A prebirth order occurs prior to the birth of the baby. A postbirth order occurs after the birth of the baby. When possible, it is preferable to obtain a prebirth order as the process is usually more straightforward.

Without an order from a court making a final determination of legal parentage, parents risk another person challenging their parental rights, which could result in another person gaining custody of the child. This is why a prebirth or postbirth order is required in surrogacy and strongly recommended in egg and embryo donations.

Most Montana birth certificates can be obtained within a few weeks from the initial request. However, some orders may take longer due to COVID-19, peak request periods, or if additional documentation is required.

If requested by our client, we can provide the applicable government authorities with documentation in advance so that the birth certificate lists the intended parents on the birth certificate.

Generally, in the state where the child is to be born.