Gestational Surrogacy in Montana - What You Need to Know

Montana offers a safe legal environment to grow families through surrogacy. Though Montana does not have a statute regarding surrogacy, courts are generally supportive of third-party reproduction. Montana judges routinely grant pre-birth orders (PBOs) to parents before the baby is delivered, legally establishing their parental rights and enabling parents to be named on their child’s birth certificate without issue.

If you’re thinking about becoming a gestational carrier in Montana or growing your family through surrogacy, the Trachman Law Center team can guide you through the specifics of the process in Montana and answer any questions you may have.

Who can be a gestational carrier in Montana?

State law does not regulate who can become a surrogate. However, fertility clinics and matching programs in Montana typically follow best practices.

Generally, fertility clinics and matching programs require a gestational carrier candidate to be between 21 and 40 years old and to have given birth at least once before, without pregnancy or delivery complications.

In addition, Montana clinics and surrogacy programs often have requirements related to BMI, citizenship or legal residency, and lifestyle (things like not smoking).

What happens after a gestational carrier is matched with a family?

Once a match is made, and the gestational carrier is medically and psychologically cleared, attorneys begin drafting the surrogacy contract (often called the gestational carrier agreement or “GCA”).

Though Montana does not have a law requiring all parties to have independent counsel, it is a best practice and standard procedure that intended parents and gestational carriers have their own attorneys that they work with throughout the contract drafting process.

Attorneys will negotiate the terms of the contract and finalize an agreement that all parties are comfortable with.

What does the Gestational Carrier Agreement include?

Typically, a GCA will address the risks and responsibilities of each party, compensation for the gestational carrier, and how the parents will cover the gestational carrier’s medical expenses (this is typically through a health insurance policy), among other issues.

It is essential that the GCA reflect consensus on how the parties will approach tough situations, including whether the termination or reduction of the pregnancy would ever be appropriate (if the surrogate’s life or health was in danger, for instance).

How do parents protect their legal rights in Montana?

The GCA will also outline the process for declaring that the intended parents are the legal parents of the child. In Montana, this is usually done through a pre-birth parentage petition, resulting in a pre-birth order (“PBO”).

A PBO is an order issued by a judge which establishes the legal rights of the intended parents at the time of the child’s birth. The PBO also affirms that the gestational carrier, her spouse or partner (if any), and any donors are not the legal parents of, or otherwise responsible for, the child.

Attorneys will draft the petition for a PBO with the required documentation and submit it to the appropriate court, generally during the second trimester of pregnancy.

A hearing is usually not required to obtain a PBO in Montana, though this can vary by judge. PBOs may be issued in Montana regardless of whether the intended parents are married, in opposite or same-sex relationships, or genetically related to the child.

Is there anything else Montana parents need to do to safeguard their parental rights?

Usually not. In Montana, the process for establishing parental rights for children born via surrogacy is fairly seamless. In most situations, a PBO is sufficient to automatically place the intended parent(s) name(s) on the child’s birth certificate.

This means that intended parents working with a Montana gestational carrier do not need to undergo an adoption to further protect their parental rights (Yay! Nobody wants to handle another long and difficult process after having a baby through surrogacy…).