Luca’s Law. Abortion in surrogacy. Recommendations for policy makers from surrogate in Texas

Source: https://lucaslaw.blog/2018/12/21/lucas-law/

LUCA’S LAW

In honor of Luca’s 1st birthday (Major shout-out to my brother-in-law, Kyle, who named my sweet surro-baby. (Kyle actually named him Luca prior to me being asked to abort.) Luca means “bringer of light”, and how unbelievably appropriate is it that his mere existence is bringing light to so many issues?!? Amazing, right??), I wanted to share my insight on why surrogacy laws need to be changed and how my experience shed light on these issues. Please, if you feel compelled to, share this post so awareness can be brought to these issues!

Issue #1: The Contract

Surrogacy contracts are very contradictory. For example, if both parties agree that the surrogate will, under the agreed upon circumstances, abort the baby, the surrogate is expected to abort. The contract does, however, state that it’s the surrogates constitutional right to choose whether she will undergo an abortion. The surrogate (like any human being) cannot be forced to do anything to her body that she is uncomfortable with. Ultimately, the surrogate’s constitutional rights outweigh any contract, so why is it stated in a contract that a surrogate will or will not abort?? This is NOT a contractual issue, it is a constitutional right!

The contract, also, states that, under no circumstance, can anyone try to coerce the surrogate to abort. In contrast, the contract, also, states that, if the surrogate agreed to an abortion and she instead chooses to exercise her constitutional rights and not undergo an abortion, you can not only stop paying her, but you can sue her for all monies spent thus far on surrogacy, as well as sue for punitive damages.

How my situation made me recognize these issues:

When I brought my contract to several lawyers, they basically stated that, although they didn’t think I was in breach of contract, a judge can translate the contract however he/she wants, so there’s no guarantee I would win the case. They stated that, if I lost the case, I could lose everything, forcing me into bankruptcy. Therefore, for me to exercise my constitutional right (my body, my choice, right??), I could possibly be facing bankruptcy and losing everything. This isn’t coercion??

The Fix:

Abortion verbiage in contracts needs to be removed regarding under which conditions abortion will take place. (Don’t take off running just yet….) With that being said, I know there are some crazies out there, and if, for example, a surrogate decided she no longer wanted to be pregnant, resulting in abortion, I absolutely believe the intended parents should be reimbursed and compensated for punitive damages. It is imperative that ALL parties are protected. This is, also, why thoroughly pre-screening all surrogates is so crucial!!

Issue #2: The Surrogacy Agency

Surrogacy agencies are “the middle man” between two parties – the intendeds and surrogates. They help match intended parents to their surrogate and navigate both parties through the step-by-step procedures. This works wonderfully if both parties agree throughout the year long process.

Now let’s look at it from another perspective. I’m a realtor. When I am selling a house for my client, and someone contacts me to buy the house, if that person is not represented by another realtor, I refer them to one. It would be a conflict of interest to represent both the buyer and the seller. If everyone was in agreement throughout the transaction, I’m sure it would be fine to represent both sides, but as soon as any issues arise, this theory no longer works.

How my situation made me recognize this issue:

When I was asked to abort, the agency called me and elaborately explained why the intendeds wanted me to undergo an abortion. When I chose not to abort, I was told that the parents wanted no further contact with me. At times, I even cried to the agency and asked them to pass a message along to the IPs, and they stated to me “I will not pass that message along to the parents. They asked I do not relay any of your messages to them.” I felt the agency was in the corner of the intended parents (after all, the IPs are who pay the agency). I did not feel like I had any support from the agency, and they continuously told me to go hire a lawyer.

The Fix:

Agencies need to be divided and have separate representation; someone representing the surrogate and someone representing the intended parents. Another solution would be to have an agency that only takes on intended parents and separate agencies that only take on surrogates. Either way, there must be division in representation.

Issue #3: The Escrow Agent:

In most cases, the surrogacy agency is the escrow agent; they are the ones disbursing monthly payments and reimbursements to the surrogate. This is a conflict of interest.

How my situation made me recognize this issue:

In all of my surrogacies, my total payment was divided up in to 10 monthly payments. Payment begins either the 1st or 15th of the month once the doctors confirm heartbeat, and it continues on the 1st or 15th of each month through delivery. As long as you deliver a full-term baby (my contracts stated 34 weeks), you receive the remaining balance in one lump sum.

After I refused to abort the baby I was carrying, I stopped receiving payment. When I asked the agency why they stopped payment, they told me that the intended parents’ names are on the escrow account, so they have ultimate jurisdiction on the account. Not only did this, again, make me feel as though the agency had chosen sides and I had no support from them, but it was never disclosed to me that the IPs had jurisdiction over the escrow account and could order the agency to stop payment.

The Fix:

A third party needs to be the escrow agent and disburse all payments, not the surrogacy agency. Simple enough, huh?

Issue #4: The Law

Several years ago, a law passed that stated any woman wanting to undergo an abortion must first attend a sonogram. State by state, this law varies slightly. Some states require that women must also wait a certain period of time after the sonogram before proceeding with the abortion. It is assumed that the woman attending the sonogram is the biological parent. The intent of this law is clear, but the verbiage is not.

How my situation made me recognize this issue:

When I was asked to abort, I was made aware of this law. Even at 18 weeks when the IPs came to Dallas, they chose to sit out of the sonogram. Trying to find ground to stand on, I mentioned this law to lawyers. Referencing the law, I told lawyers that the IPs should first attend a sonogram before even discussing abortion with me. The lawyers told me that the law says nothing about intended parents or surrogates, therefore, I didn’t have a leg to stand on.

The Fix:

Implement verbiage within the law that states the biological parents must attend a sonogram, not just the woman carrying the baby. This is the exact point of this law, the verbiage is simply incorrect.

In Conclusion:

The reason it’s so important that we change surrogacy laws is so that women feel comfortable and confident in their decision to become a surrogate mother. There’s such a need for surrogates, and if women knew their rights in surrogacy, there would be so many more women who would step up to give this miraculous gift of life! The sooner we can make legal changes to protect the parties, the sooner so many more people will be able to have their dreams of having a family become a reality. Surrogacy laws haven’t been updated in years; it’s time we make a change!

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