Supreme Court Justice Elena Kagan on Tuesday ruled against a surrogate who gave birth to a child with a serious heart defect against the wishes of the biological parents, who wanted her to have an abortion.
Kagan declined to pause a California court order that gives the biological parents — Los Angeles couple Omar Ahmed and Nausheen Gilkar — parental authority over the boy. Kagan is the justice who handles requests from U.S. Court of Appeals for the 9th Circuit, which includes California.
The surrogate, McKenna West, asked the Supreme Court to intervene after repeatedly losing bids in state court to maintain some control over the child’s medical care.
After the fetus was diagnosed with the rare and often fatal heart condition, Ahmed and Gilkar instructed West to terminate the pregnancy, an option set out in their contract. West instead traveled from her Alaska home to Texas, where she said the child could receive medical care. She had the baby in August.
The high court’s decision is the latest chapter in a drama that has unfolded publicly since August across three states, igniting debate over abortion, parenthood and the limits of family law in America.
Despite the hot-button issues at play, the case revolved around a technical legal question: whether a California Superior Court had jurisdiction to grant Ahmed and Gilkar parental rights.
After the baby was born, Ahmed and Gilkar stayed in Texas, where the child was in a neonatal intensive care unit, their attorney told The Washington Post in mid-September. The attorney, Lee Budner, decried West’s escalation of the case to the Supreme Court, pointing to the lower court decisions in favor of Ahmed and Gilkar.
Ahmed and Gilkar named the baby Rumi, while West called him Gabriel.
“To be clear, there is not, and there has never been, any good faith controversy over who the parents of Rumi are,” Budner said.
West’s attorneys wrote in court documents the California ruling was “a gross violation of federal due process.”
“Ordinarily, M.W. would have been deemed Baby G.’s mother under Texas law by virtue of giving birth to him,” they wrote. “But because of the unlawful California judgment, she has been dismissed with prejudice from the Texas proceedings and denied any information about or control over the medically fragile child.”
Disputes over care and custody for the child began this spring when West was around 20 weeks pregnant and the fetus was diagnosed with hypoplastic left heart syndrome. Surgeries are available to treat the condition, but many children die of the heart defect before their first birthday.
After consideration of the challenges the heart condition would bring for the child’s life and their lives, Ahmed and Gilkar decided to terminate the pregnancy, according to court papers.
West initially agreed to have the abortion and scheduled an appointment, according to court filings submitted by Ahmed and Gilkar.
Then West changed her mind. According to court filings submitted by West, she told the surrogacy agency she could not live with herself if she went through with the abortion. She had formed an emotional connection with the child, and hoped that Ahmed and Gilkar would let her have the baby.
Ahmed and Gilkar still wanted to terminate the pregnancy.
West then enlisted the help of antiabortion activists, who paid for her travel from her home in Alaska to Texas, which has a near-total ban on abortion.
The California court ruled Ahmed and Gilkar had parental rights. And a Texas judge authorized them to make medical decisions for the child.
The baby underwent surgery on Aug. 17, Ahmed and Gilkar’s attorney said in a statement that day.
Budner said it was the last update on the baby’s health that the couple planned to share.
“His condition remains critical and complex, and his family seeks privacy in caring for their son on his long road to recovery,” Budner wrote,
West challenged the California order, saying that it was rendered in violation of her 14th amendment due process rights.
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