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A surrogate who defied a California couple’s demand to abort their baby after a devastating heart diagnosis is taking her fight to the U.S. Supreme Court, arguing a lower court ruling has left her powerless to advocate for the medically fragile newborn.
Attorneys for Alaska cardiac nurse McKenna West filed an emergency application Wednesday, asking Justice Elena Kagan to temporarily block a Los Angeles court ruling that declared the California couple the baby’s legal parents.
Kagan handles emergency matters arising from the Ninth Circuit, which includes California. She has not ruled on the request.
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West carried the child under a surrogacy agreement with California couple Nausheen Gilkar and Omar Ahmed, who call the baby Rumi. West calls him Gabriel.
The baby was born in Texas on Aug. 12, with hypoplastic left heart syndrome, or HLHS, a rare condition in which the left side of the heart is severely underdeveloped.
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The legal war began after the condition was detected during a 20-week ultrasound. West alleges Gilkar and Ahmed asked her to terminate the pregnancy under a provision in their surrogacy agreement covering serious fetal abnormalities.
West refused, telling the surrogacy agency she could not abort “this precious baby” after feeling him move and learning treatment was available, according to the filing.
She offered to raise the child herself or arrange an adoption if the couple no longer wanted him, while allowing them to walk away from any further financial obligations.
Her attorneys allege West was then warned that continuing the pregnancy could expose her to more than $250,000 in financial penalties.
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Gilkar and Ahmed later turned to a California court to establish their legal rights as the baby’s parents. West argued the case belonged in Alaska under the surrogacy agreement and said she appeared in California solely to challenge the court’s jurisdiction.
The Los Angeles Superior Court determined that West had effectively consented to its authority by submitting a 147-page filing that addressed the “substance of the issues,” according to the application.
West’s lawyers said most of those pages were exhibits supporting her jurisdictional challenge and that she had repeatedly refused to argue the underlying case.
“Any reasonable view of consent would recognize that ‘no’ does not mean ‘yes,’” they wrote.
West also claims she was never properly served. Her filing says a FedEx package containing the court papers was delivered to her babysitter, who allegedly was not told what was inside.
The California court declared Gilkar and Ahmed the baby’s legal parents June 22, and West failed to persuade three state courts to put the ruling on hold.
SURROGATE GIVES BIRTH IN TEXAS TO BABY WITH HEART DEFECT AFTER PARENTS REQUESTED ABORTION
The judge acknowledged during the California proceedings that the dispute “[m]ay be a question of life and death” for the unborn child, according to West’s application.
The fight then moved to Texas, where West traveled so the baby could be delivered at a hospital equipped to treat his condition.
Texas Attorney General Ken Paxton secured an emergency order before the birth directing the hospital to provide life-saving care and preventing the child from being removed from the state.
West previously said she had only about one minute with the newborn while his umbilical cord was still attached before he was taken from her. A court order later barred her from seeing or holding him.
The baby underwent the first of three anticipated open-heart surgeries Aug. 17. He was later returned to a breathing tube after his condition declined, according to court filings previously reviewed by Fox News Digital.
Gilkar said during a hearing last month in Dallas that the couple had remained at their son’s bedside and accused West of trying to take him.
“He’s our child,” Gilkar said, according to The Associated Press. “He’s the love of our lives.”
She also told the court the newborn was “suffering a lot” as he struggled to breathe, choked on tubes and required a blood transfusion following surgery, according to the AP.
West has said she would abandon her custody effort if a court determined the intended parents were committed to providing the child with life-saving care.
But on Sept. 2, a Texas judge upheld the California ruling and removed West from the case. Paxton has also stepped away from the legal fight.
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West’s attorneys argue she is now barred from receiving information about the baby or defending the order requiring his continued treatment. They allege Gilkar and Ahmed are challenging that medical-care order.
The couple previously agreed to the baby’s first surgery and said they would approve life-saving care if doctors determined he was a candidate.
West is now asking the Supreme Court to temporarily block the California ruling, which could give her a path back into the Texas case. Her attorneys argue the dispute raises a broader constitutional question over whether challenging a court’s authority can itself be treated as accepting that authority.
Her lawyers stressed that temporarily blocking the ruling would not decide who the baby’s legal parents are or direct doctors to provide a particular course of treatment. Instead, it could allow West to ask the Texas court to bring her back into the case.
Without Supreme Court intervention, her attorneys warned, West will remain shut out of decisions and updates about the baby’s condition as the appeals process plays out.
“Unless this Court provides relief from that judgment, M.W. will have no access to information about Baby G.’s condition,” West’s attorneys wrote.
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They argued that a victory later could come too late to protect the child.
“Relief later in Texas proceedings may only restore her right to protect a child that has already passed,” the filing states.
Fox News’ Shannon Bream and Bill Mears contributed to this report.
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