Surrogate Takes Baby Custody Fight to Supreme Court

Surrogate McKenna West filed an emergency Supreme Court appeal to halt a California ruling granting custody of the heart-defect baby she carried.

McKenna West, an Alaska woman who served as a surrogate for a California couple, has asked the US Supreme Court to intervene in a custody dispute over the 4-week-old boy she gave birth to in August. West filed an emergency appeal seeking to halt a California court order that recognizes Omar Ahmed and Nausheen Gilkar as the child's parents. The couple had asked West to terminate the pregnancy after a scan showed the fetus had a severe heart defect; instead, West traveled to Dallas, Texas, where nearly all abortions are illegal, and gave birth to the boy, who was born with hypoplastic left heart syndrome.

The case pushes the nation's highest court into territory it rarely touches: a private surrogacy and family dispute, in an arena where surrogacy is not federally regulated and each state writes its own laws. The Supreme Court is not obliged to hear the case, and attorney Marla Neufeld, who represents parents, surrogates and donors but is not involved, told the Associated Press that emergency relief is extraordinarily difficult to obtain and the Court does not usually get involved in family disputes. That West reached the Court at all — with backing from Republican officials including Texas Attorney General Ken Paxton, who won an emergency order requiring the boy receive medical care in Texas — makes the dispute extraordinary.

The boy was born August 12 with hypoplastic left heart syndrome, a life-threatening condition that prevents normal blood flow and leaves the left side of the heart unable to pump enough blood to the body, according to the US Centers for Disease Control and Prevention. Without treatment, the condition can lead to death within days or weeks, and while he underwent surgery soon after birth, the CDC notes surgical repairs are not cures and additional surgeries or a heart transplant may be needed. West argues the couple will not commit to life-saving care because they sought an abortion, and her lawyers suggested the couple could place the child in hospice care in California, according to the BBC. The couple's attorney said last month the newborn was in critical condition and appeared to be 'suffering from potential complications.'

The legal battle has crossed state lines and produced conflicting outcomes. A California court granted parental rights to Ahmed and Gilkar, while a Texas court issued a restraining order blocking West from seeing the baby. According to CNN, the Texas court granted full credit to the California judgment on September 2, and West lost her plea in Texas to win conservatorship of the child. West is barred from any contact with the baby, whom she calls Gabriel and the couple calls Rumi, a detail reported by the Associated Press via CNN. Gilkar tearfully told a Dallas hearing on August 25 that 'He's our child,' while the couple says West violated the surrogacy contract and traveled to Texas without telling them.

West's lawyers argue the stakes are enormous: without Supreme Court intervention, she says she will lose access to any information about the medically fragile child's condition, and the filing states the couple will not provide her updates. The emergency appeal asks the Court to halt the California ruling and to recognize West as the mother under Texas law, according to CNN. The couple has not responded to the filing, and attorneys for Ahmed and Gilkar did not respond to press requests for comment. With the case file sealed and the odds of the Court granting relief described as low, the immediate question is whether the justices step in before the boy's next course of medical decisions in California.