McKenna West’s attorney says the surrogate’s fight over the newborn she carried could go all the way to the U.S. Supreme Court, even as the child’s intended parents now have physical custody and authority over his medical decisions under current court orders.
West gave birth in Texas on Aug. 12 to a boy diagnosed during pregnancy with hypoplastic left heart syndrome, a serious congenital heart condition. Nausheen Gilkar and Omar Ahmed, the California couple whose embryo West carried as a gestational surrogate, are now with their son while he receives specialized medical care.
A Texas temporary restraining order currently prevents West from making medical decisions for the baby, taking possession of him, interfering with Gilkar and Ahmed’s access or representing herself as his parent, guardian or medical decision-maker. The same order authorizes Gilkar and Ahmed to receive the child’s protected medical information and make medical decisions, subject to a separate emergency order governing his care.
West’s attorney, Lincoln Davis Wilson, is nevertheless challenging a California parentage judgment recognizing Gilkar and Ahmed as the child’s parents. “We’ll take it up to the US Supreme Court if we have to,” Wilson told the New York Post.
West’s Lawyer Says the California Parentage Judgment Should Not Control
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Wilson told the Post that West intends to challenge the California judgment and argues that Texas law should determine her status because she gave birth there.
“She is seeking parentage of the child because she gave birth in Texas,” Wilson said. He called the California judgment “void” and argued that if it is set aside, West should be recognized as the child’s mother under Texas law.
A California trial court has already recognized Gilkar and Ahmed as the child’s parents, and the Texas Tribune reported that an appellate court rejected West’s request to prevent that judgment from taking effect.
Texas law also makes the interstate issue more complicated than simply determining who physically gave birth. In a brief filed in the Dallas case, the Texas Attorney General’s office described state law as generally treating the woman who gives birth as the child’s mother unless a Texas-validated gestational agreement or a recognized judgment from another state provides otherwise.
The Intended Parents Now Have Physical Custody
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Gilkar and Ahmed’s attorney, Lee Budner, said the couple’s son is now physically in their custody while receiving specialized treatment. “Our clients’ son was born yesterday morning and he is now in their physical custody while he receives expert medical care at a tertiary care center,” Budner said in a statement reported by PEOPLE.
Budner said the couple is following the recommendations of the baby’s medical team and focusing on his health. Wilson has said that, under the current orders, West is not permitted to see or hold the newborn. West and her supporters have referred to the child as Gabriel. Gilkar and Ahmed have disputed that name and referred to their son as Rumi in court filings.
The Dispute Began After a 20-Week Heart Diagnosis
The conflict intensified after the fetus was diagnosed at approximately 20 weeks with hypoplastic left heart syndrome, or HLHS, in which the left side of the heart is severely underdeveloped. West says Gilkar and Ahmed wanted her to terminate the pregnancy after learning of the diagnosis and that she ultimately refused.
The intended parents dispute parts of that account. According to court documents reported by the Associated Press, Gilkar and Ahmed said that after consultations about the child’s prognosis, they and West were initially in agreement about terminating the pregnancy and that West made the initial appointment before changing her mind.
The surrogacy agreement included provisions addressing termination following fetal abnormalities, but the existence of such a provision did not give the intended parents the power to physically force West to undergo an abortion. West continued the pregnancy and eventually traveled from Alaska to Texas. Before the birth, she sought legal recognition there that would allow her to participate in decisions about the baby’s treatment.
Gilkar and Ahmed, meanwhile, argued that West had violated their surrogacy agreement and disrupted plans for their son to be born in California and receive long-term cardiac care there. Their filings said that, after the dispute over termination, they had decided to continue the pregnancy and arrange treatment following the birth.
The Intended Parents Deny They Planned to Withhold Care After Birth
Texas Attorney General Ken Paxton intervened in the case. Paxton’s office went to court arguing that medically indicated, life-sustaining treatment had to be protected and alleging that Gilkar and Ahmed might refuse surgery or move the newborn to California so treatment could be withheld.
The intended parents have denied that characterization. “That is not and has never been our position,” Ahmed said in a Texas court filing reported by the Associated Press. He said that after West moved to Texas, the couple had sought access to the doctors caring for their son so they could make informed medical decisions.
Their attorneys have also said medical professionals had previously advised them that doctors could not determine before birth whether their child would ultimately be a candidate for open-heart surgery. The Texas Attorney General’s own filing described its assertions about a potential refusal of surgery as “assumed facts” presented to support the state’s intervention.
Texas Ordered the Baby to Receive Life-Sustaining Care
The Texas Attorney General’s office asked the Dallas court to intervene shortly before West gave birth. In its brief supporting the intervention, the state argued that Texas has authority to protect a child born within its borders if medically indicated life-saving treatment is at risk.
The court then ordered that the newborn receive medically indicated stabilizing and life-sustaining treatment and placed restrictions on his discharge, removal or transfer while the case remains pending.
Gilkar and Ahmed have rejected suggestions that they intended to deny their son appropriate treatment. Budner accused West and Paxton’s office of turning what he described as a devastating family situation into “political theater.”
“Our clients’ only focus at this time is ensuring that their baby receives the medical care that he vitally needs and that they, as his parents, are able to spend every precious moment they can with their beautiful newborn son,” Budner said. West’s attorney has also said arrangements were being made for the child to receive the surgery doctors recommend.
The Next Texas Hearing Is Set for August 25
The temporary restraining order directs West to appear in person before the 301st Judicial District Court in Dallas County at 1 p.m. on Aug. 25. At that hearing, the court is expected to consider whether the restrictions currently imposed on West should become a temporary injunction while the larger case continues.
Wilson has made clear that West does not consider the current custody arrangement the end of the dispute. “We think that once that California judgment is removed … that basically she is the mother under Texas law,” he told the New York Post.