Surrogate mother takes custody dispute to Supreme Court

A surrogate mother from Alaska on Wednesday urged the Supreme Court to intercede in a multistate custody dispute over a California couple’s medically fragile newborn. In August, McKenna West fled to Texas and gave birth to a baby she carried on behalf of Omar Ahmed and Nausheen Gilkar. The couple previously demanded West undergo a late-term abortion after the baby was diagnosed with a life-threatening heart defect.

A California court had issued a judgment establishing the Los Angeles couple’s parental rights over the baby. But West asked the Supreme Court to temporarily block the California ruling so she can be part of the newborn’s ongoing medical care. West claimed that the baby could be removed from a Texas hospital to California for hospice as soon as Sept. 17, despite his condition being treatable. Without a favorable ruling from the Supreme Court, West said she can’t advocate for the baby she bore and remain informed about his medical care.

How did the case get here? Doctors diagnosed the baby with hypoplastic left heart syndrome at West’s 20-week ultrasound. The condition can be fatal if not treated quickly, but a series of surgeries can enable about 70% of treated children to live to be at least 5 years old. However, the couple West contracted with demanded she abort the baby. They threatened to sue the 28-year-old nurse from Alaska for more than $250,000 for breaching their surrogacy agreement and its abortion-upon-demand clause.

West instead offered to raise the baby herself or place him up for adoption. But the California couple started legal proceedings to establish their parental rights in their home state. The couple also tried to force her to deliver the baby in California, rather than in Texas, where state law gives the birth mother parental rights. After California’s court established Ahmed and Gilkar’s parental rights, the custody battle in Texas ended.

What was West’s argument to the Supreme Court? Her appeal included complex jurisdictional claims, including that litigation should have begun in her home state of Alaska, rather than California. If the Supreme Court blocked California’s order, it would allow the legal battle in Texas to continue, West’s attorneys from Alliance Defending Freedom argued. She contended she has rights to the child that she carried for 37 weeks, and for whom she fought to provide with life-saving medical care.

Dig deeper: Read Lauren Canterberry’s report on how West’s case highlights inherent problems in the surrogacy industry.