Katharine E. Hamilton
HAMILTON LAW FIRM, PLLC
As a mother, I have learned that parenthood is one of the most exciting and rewarding experiences that life has to offer. I love babies and I cannot imagine life without mine. I started specializing in fertility law in 2015 when a couple contacted me to represent them; unfortunately, they were unable to have a baby without the help of a gestational surrogate. I was honored they asked me to help them start their family. After their surrogate gave birth, they emailed me a picture of their baby girl. It was rewarding to know that I had a part in making that miracle happen.
Fertility law (also known as “reproductive law”) is an emerging field of law. It allows individuals and couples to expand their families through the use of egg donation, sperm donation, embryo donation and surrogacy. A fertility law attorney’s role is to prepare a written agreement and assist with any subsequent legal proceedings to establish parental rights. Due to the complexity of surrogacy arrangements and the lack of legal authority in Montana, it is strongly advised that the intended parent(s) and surrogate each retain their own legal counsel. One attorney should not represent all the parties to a surrogacy agreement as it has the potential to create a conflict of interest. As I advise all my clients, a surrogacy arrangement is also strengthened when each of the parties is represented by legal counsel; it helps to avoid any claims that one party did not understand the consequences of the document that they signed, which could potentially invalidate the agreement.
With regard to surrogacy arrangements, there are two steps. 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. The parties to the agreement include the Intended Parent(s), the Surrogate, and the Surrogate's partner if she has one. It is important to clarify each party’s role in the agreement because Montana law presumes that 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 usually are incorrect in a surrogacy arrangement, especially for same-sex couples.
The second step is the prebirth legal proceedings which establish parentage for the intended parents. These proceedings are “sealed” for the public record and provides the Intended Couple with a document evidencing their parental rights. It is preferred that these proceedings begin 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.