A California couple’s surrogate who refused their wishes to have an abortion has asked the U.S. Supreme Court to intervene in a custody dispute over the 4-week-old child, who was born with a serious heart defect.
McKenna West filed the emergency appeal Wednesday amid a legal battle over surrogacy and abortion that has won the support of Republican officeholders and anti-abortion groups. West, who lives in Alaska, traveled to Dallas to give birth in August. Most abortions are banned in Texas.
West is asking the nation’s highest court to halt a California court order that recognizes Omar Ahmed and Nausheen Gilkar as the parents of the child whom she calls Gabriel and they call Rumi. West wants final custody or conservatorship because she believes the couple will not provide life-saving care, citing their request for an abortion at 23 weeks.
The boy was born Aug. 12 with hypoplastic left heart syndrome, a life-threatening condition that prevents normal blood flow to the organ. He underwent surgery soon after he was born. The couple’s attorney said in August that the newborn was in critical condition and appeared to be “suffering from potential complications.”
Surrogacy is not regulated at the federal level. Each state has its own laws, which can leave room for gaps in interpretation. The Supreme Court is not obliged to hear the case.
West is barred from any contact with the baby
Ahmed and Gilkar have not responded to the Supreme Court filing. They previously said West violated the surrogacy contract, and they obtained a restraining order preventing her from seeing or holding the child.
Gilkar called West unstable during a hearing Aug. 25 in Dallas, telling the court she was trying to take their baby away.
“He’s our child,” Gilkar said, wiping away tears.
West and her attorneys argue that Gilkar and Ahmed are not committed to guaranteeing the baby will undergo surgeries or “life-saving care.”
Both sides were publicly silent after the hearing last month and the case file was sealed, but West’s Supreme Court filing says she lost her plea in Texas to win conservatorship of the child.
The Texas court granted full credit to the California judgment on Sept. 2, according to the filing.
The odds of the Supreme Court granting the appeal are low, said Marla Neufeld, an attorney who represents parents, surrogates and donors but who isn’t involved in this case. Emergency relief is usually extraordinarily difficult to obtain and the Supreme Court doesn’t usually get involved in family disputes, she said.
West believes the baby’s life is in danger
“The stakes of the decisions below are enormous,” West’s lawyers wrote in her plea to the Supreme Court, asking that she be recognized as the mother under Texas law. “But because of the unlawful California judgment, she has been dismissed with prejudice from the Texas proceedings and denied any information about or control over the medically fragile child.”
West believes Ahmed and Gilkar plan to put the baby into hospice care in California rather than let him undergo surgery that could save his life, according to the filing.
Without treatment, hypoplastic left heart syndrome can lead to death within days or weeks. Surgical repairs are not necessarily cures and additional surgeries or heart transplants may be needed, according to the Centers for Disease Control and Prevention.
The couple has said they will not provide any updates to West about the child’s condition, the filing states.
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