Justice Elena Kagan on Tuesday refused to intervene in a high-profile custody battle that involved difficult questions surrounding surrogacy and abortion, leaving in place a lower-court order that gave custody to the biological parents in the dispute.
The case drew national attention when a surrogate from Alaska refused to have an abortion after the fetus she was carrying was diagnosed with a serious heart problem. She eventually traveled to Texas and gave birth to the child over the initial objections of the parents, a couple from California.
The baby boy was born in August. He received open-heart surgery and has been in a pediatric intensive care unit at a hospital in Dallas, where the couple have also been living to be with him.
On Tuesday, Justice Kagan, who oversees emergency filings from California, denied the surrogate’s request to block the lower-court ruling in the couple’s favor. She acted on her own without referring the matter to her Supreme Court colleagues. The justice’s order did not include an explanation, as is often the case when the court responds to such filings.
The couple, Nausheen Gilkar and Omar Ahmed, had struggled to have a baby and entered into a surrogacy arrangement with McKenna West, a nurse. Their legal dispute began in April after the fetus was diagnosed with hypoplastic left heart syndrome at around 20 weeks of pregnancy.
The rare and life-threatening congenital heart condition requires open-heart surgery soon after birth, followed by two additional childhood heart surgeries.
The couple asked Ms. West to terminate the pregnancy, citing a provision of their contract with her that left decisions dealing with abortion to them. Ms. West refused. She later moved to Texas, where the boy was born on Aug. 12.
Ms. West is represented by the Alliance Defending Freedom, a conservative Christian legal organization whose lawyers appear frequently before the Supreme Court. The Texas attorney general, Ken Paxton, also intervened in state court to ensure the child received medical treatments. He later dropped out of the case.
In June, a California court recognized Ms. Gilkar and Mr. Ahmed as the boy’s parents. A judge in Texas extended a temporary order barring Ms. West from presenting herself as a parent to the baby.
After a subsequent court hearing in Texas, a judge directed the hospital in Dallas to provide lifesaving care and prohibited the baby’s removal from Texas. On Sept. 2, the court also dismissed Ms. West from the proceeding.
In their emergency request, Ms. West’s lawyers told the Supreme Court that she had been denied “control over the medically fragile child.” Without intervention from the justices, they said, “she will receive no further information about the child she carried for 37 weeks and fought to save.”
The case should have been resolved in Alaska, her lawyers said, adding that the California courts had stripped Ms. West of her rights to “protect the baby’s life.”
In response, lawyers for the couple said on Friday that they have ensured that “their child receives the lifesaving care he needs — and they are committed to doing so for the rest of his life.”
An order from the Supreme Court blocking state court decisions would allow Ms. West to be involved in the child’s medical care and “serve only to cause chaos and confusion,” according to the heavily redacted filing.
Ms. Gilkar and Mr. Ahmed are “providing the precise medical care for their child” that Ms. West desires, the lawyers said, adding that “a right to life is not at issue here.”
The relationship between the couple and the surrogate got off to a smooth start. Ms. West stayed with them when she met with fertility doctors in California. Ms. Gilkar said in state court proceedings in Texas that she had sat by Ms. West’s side during the procedure transferring the embryo — biologically Ms. Gilkar’s and Mr. Ahmed’s — so that Ms. West could carry it to term.
But now they are at odds over even what to call the child. Ms. Gilkar and Mr. Ahmed named him Rumi, which their lawyer said had been put on his birth certificate. Ms. West’s lawyers used a different name, Gabriel, chosen by Ms. West, until they were told by the Texas judge to stop.
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