Surrogate who refused abortion takes fight to Supreme Court as baby's life hangs in balance

Alaska surrogate asks Supreme Court for emergency relief in newborn heart defect case

An Alaska cardiac nurse is asking the U.S. Supreme Court to temporarily block a California ruling that named the intended parents in a surrogacy arrangement as a newborn boy’s legal parents, saying the decision has left her unable to receive medical updates or advocate for the child’s care.

Attorneys for McKenna West filed an emergency application Wednesday with Justice Elena Kagan, who handles urgent matters from the 9th U.S. Circuit Court of Appeals, which includes California. Kagan has not yet ruled on the request.

West carried the child for California couple Nausheen Gilkar and Omar Ahmed under a surrogacy agreement. Gilkar and Ahmed call the baby Rumi; West calls him Gabriel.

The boy was born in Texas on Aug. 12 with hypoplastic left heart syndrome, a rare defect in which the left side of the heart does not fully develop. The condition was found during a 20-week ultrasound.

West says Gilkar and Ahmed asked her to end the pregnancy under a part of the surrogacy contract dealing with serious fetal abnormalities. She refused, telling the surrogacy agency she could not abort “this precious baby” after feeling him move and learning that medical treatment was available.

She offered to raise the child herself or help arrange an adoption if the couple no longer wanted to proceed, while releasing them from further financial obligations, according to her filing. Her attorneys also allege she was warned that continuing the pregnancy could expose her to more than $250,000 in penalties.

The dispute over parentage moved into court, with Gilkar and Ahmed seeking recognition as the child’s legal parents in California. West argued the case should be handled in Alaska under the surrogacy agreement and said her appearance in the California proceedings was limited to challenging the court’s authority.

The Los Angeles Superior Court ruled that West had accepted its jurisdiction by filing a 147-page document that addressed the substance of the case. Her lawyers dispute that conclusion, saying most of the filing consisted of exhibits supporting her jurisdictional objection and that she repeatedly declined to argue the merits of the parentage dispute.

“Any reasonable view of consent would recognize that ‘no’ does not mean ‘yes,’” West’s attorneys wrote.

West also claims she was not properly served with the California court papers. Her filing says a FedEx package containing the documents was delivered to her babysitter, who was not told what it contained.

The California court declared Gilkar and Ahmed the baby’s legal parents on June 22. West then sought to have the ruling paused but was unsuccessful in three state courts.

During the California proceedings, the judge noted that the dispute “may be a question of life and death” for the unborn child, according to West’s application.

West later traveled to Texas so the baby could be delivered at a hospital able to treat his condition. Before the birth, Texas Attorney General Ken Paxton obtained an emergency order directing the hospital to provide care needed to preserve the newborn’s life and preventing the child from being removed from the state.

West has said she was able to spend only about one minute with the baby after birth, while his umbilical cord was still attached, before he was taken from her. A later court order barred her from seeing or holding him.

The newborn underwent the first of three expected open-heart surgeries on Aug. 17. Court filings say he was later placed back on a breathing tube after his condition worsened.

Gilkar told a Dallas court last month that she and Ahmed had stayed at their son’s bedside and accused West of trying to take him.

“He’s our child,” Gilkar said. “He’s the love of our lives.”

She also said the baby was “suffering a lot,” describing breathing difficulties, choking on tubes and a blood transfusion after surgery.

West has said she would drop her custody effort if a court found that the intended parents were committed to providing the child with life-saving care. Gilkar and Ahmed agreed to the first surgery and said they would approve life-saving treatment if doctors determined the baby was a candidate.

On Sept. 2, a Texas judge upheld the California ruling and removed West from the case. Paxton has also stepped away from the litigation.

West’s attorneys now argue that she is barred from receiving information about the baby’s condition and from defending the order requiring continued medical treatment. They also allege Gilkar and Ahmed are challenging that care order.

The emergency request to the Supreme Court asks Kagan to temporarily block the California parentage ruling. West’s lawyers say that would not decide who the child’s legal parents are or tell doctors what treatment to provide. Instead, they argue, it could allow West to return to the Texas case and ask to be included in future proceedings.

They frame the issue as a broader legal question: whether a person who appears in court only to dispute its authority can be treated as having accepted that authority.

In filings that refer to West as M.W. and the newborn as Baby G., her attorneys warn that time is critical.

“Unless this Court provides relief from that judgment, M.W. will have no access to information about Baby G.’s condition,” they wrote.

They also argued that any later victory could come too late to matter.

“Relief later in Texas proceedings may only restore her right to protect a child that has already passed,” the filing states.

Kagan has not ruled on the emergency application.