An unusual legal case involving surrogacy, reproductive rights and medical care is currently playing out across several states. At issue are the medical question of what to do for a baby with a congenital heart defect and the legal question of who gets to make decisions concerning a surrogate pregnancy. Ultimately, the surrogate won the right to bring the baby she was carrying to term and to obtain medical treatment for the child upon birth.
Baby born with heart defect as biological parents and surrogate fight over medical care
McKenna West, a nurse from Alaska, gave birth Wednesday to a baby in Texas amid a legal fight that has spanned three states. West, who relocated to Texas during the pregnancy, has been carrying the child as a surrogate for a California couple, eventually identified as Nausheen Gilkar and Omar Ahmed. However, a dispute arose between West and Gilkar and Ahmed, the baby’s biological parents, at the 20-week-mark of the pregnancy when doctors diagnosed the fetus with hypoplastic left heart syndrome, a rare congenital heart defect that can be fatal within days of birth if not treated. Life-saving treatment for the condition, which impacts fewer than 1,000 babies born in the United States each year, requires multiple corrective surgeries, and long-term health problems may remain. West claims that the child’s biological parents requested that she abort the baby after the diagnosis and that she refused. She also claims that the biological parents refused to commit to providing life-saving medical care for the child upon birth; the couple disputes the claims that they would not provide surgery for the baby.
The questions of what to be done concerning the child and who had the authority to make these decisions worked their way through courts in all three states. West first sought a legal decision in Alaska, where she lived at the time she was impregnated and where she signed the surrogacy agreement. The Alaska state government supported West in a brief that argued that it was her constitutional right to make medical decisions for the child she was carrying. An Alaska court hedged in its decision, ruling that a California court could make the decisions of where West gave birth and who would be on the medical team to attend to the baby, but West was not explicitly ordered to relocate to California. Meanwhile, West sought legal remedy in Texas, where she now lives, asking that state to declare her the legal guardian of the baby.
Texas attorney general intervenes for baby ‘Gabriel’ as biological parents claim politicization
This brought the intervention of Texas Attorney General Ken Paxton, who is currently in a tight U.S. Senate race with Democrat James Talarico after Paxton defeated sitting GOP Senator John Cornyn in the Republican primary. Paxton, who is staunchly pro-life and has pushed the state’s very restrictive abortion laws, helped secure a Texas court order on Tuesday mandating that the baby receive “medically indicated stabilizing and life-sustaining care” immediately after birth and banning anyone from removing the baby from Texas. “The court has made the right decision in immediately acting to protect baby Gabriel’s life and ensure he receives the care he deserves,” Paxton said of the decision, using the name that West had given the child. West, who was due to deliver on September 2, gave birth to the baby on Wednesday, one day after obtaining the Texas order.
The California couple has not spoken publicly about the case, but their attorney, Lee Budner, accused Paxton of engaging in “political theater” surrounding the case. “After heartbreaking consultations with medical providers and their own research about the suffering and quality of life HLHS babies endure, A.B. and C.D. made the difficult decision to terminate the pregnancy,” read the couple’s legal filing, which used initials at the time to maintain their anonymity. “It is undisputed that West initially agreed and that she herself made the initial appointment. She then unilaterally changed her mind, cut off all contact with A.B. and C.D., and withdrew medical releases allowing A.B. and C.D. to have contact with all medical providers,” the couple’s legal counsel argued. West, meanwhile, has maintained that she was acting in the best interests of the baby, regardless of the surrogacy contract. West told conservative journalist Megyn Kelly “I felt very trapped due to this contract. I felt like I had no voice.” Despite the contract, West said that “I knew in my soul, in my heart that I wanted to protect this little boy.”
Now that the baby has been born and has begun receiving medical treatment, the long-term issues of custody and medical treatment remain open concerning the baby called Gabriel. Biological parents Gilkar and Ahmed are next set to appear in court in Dallas County on August 25, and the ultimate resolution of the legal case between them and West could set precedents for others who find themselves in similar situations.