The parents have kept the baby’s name private. The surrogate called him “baby boy.” And the activists who made him the heart of a multistate abortion fight dubbed him “Baby Gabriel.”
On Wednesday, the surrogate gave birth in Texas to the baby — who has become the subject of a public and painful battle spanning multiple courts and political venues.
Weeks earlier, according to the surrogate, the intended parents asked to end the pregnancy after learning that the fetus had a life-threatening condition, hypoplastic left heart syndrome.
The surrogate, McKenna West, said she had signed a contract that allowed the intended parents to decide to terminate the pregnancy under certain circumstances. But at the time of the diagnosis, she said, she was around 20 weeks and did not want to have an abortion.
Instead, she enlisted the help of antiabortion activists, who paid for her travel from her home in Alaska to Texas, where abortion is illegal. There, West planned to give birth and seek care for the baby’s heart defect.
Texas Attorney General Ken Paxton (R), a staunch abortion opponent, also aided West this week when he intervened in a Dallas court case to ask for an emergency order granting the baby access to life-sustaining care for the heart condition, which requires surgery after birth. The court also authorized the intended parents, Omar Ahmed and Nausheen Gilkar of California, to make medical decisions for the baby. In that temporary order, the court banned West from presenting herself as the baby’s parent.
The case is stretching the fabric of family law in America, raising questions about parentage and custody in courts across three states. Some social conservatives have cast the surrogate as an emblem of the cruelty of abortion and the unintended consequences of surrogacy. Segments of their movement oppose surrogacy because it frequently involves in vitro fertilization, a process in which embryos can be destroyed, and antiabortion activists see those embryos as human life.
Douglas NeJaime, a professor at Yale Law School and a family law expert, said he worried that the conservative energy behind the case would distort the practice of surrogacy, which is regulated in states across the country by laws that detail the rights of the parties involved.
NeJaime said that while surrogacy agreements can include provisions that allow intended parents to end pregnancies, courts would be unlikely to enforce them.
“But then we get these stories that paint a different picture, and I worry that they crowd out what is actually the reality on the ground,” he said.
Lee Budner, an attorney for the intended parents, decried the swarm of conservative groups that in his view turned the conflict into a political maelstrom. He said in a statement Thursday that the couple was focused on the health of the newborn, who is receiving medical care for his condition.
“As if the heartbreak of his condition were not enough, they are devastated to see their family tragedy transformed into political theater by the Texas Attorney General’s office and McKenna West,” Budner said.
Ahmed and Gilkar had established their parentage of the child through a court case in California, where they live, before the baby’s birth.
Attorneys representing West did not respond to requests for comment Thursday. Some details of the conflict are not public because the court documents are sealed or not readily accessible.
In an early August interview with Lila Rose, the founder of the antiabortion group Live Action, West said she booked an appointment for an abortion before she decided not to go through with it.
“That’s something that I would have had to live with, physically, emotionally, mentally, and knowing what I know now, I wouldn’t have signed up for something like this,” she said.
Live Action paid for flights to Texas for West and her two children, a spokesperson said. The group also helped West retain legal counsel through the conservative Alliance Defending Freedom. In an appearance last week on “The Megyn Kelly Show” with West, Rose called surrogacy contracts “slavery contracts,” adding that she saw it as unethical for intended parents to be allowed to terminate a surrogate’s pregnancy under the agreements.
During her nearly 45-minute recorded conversation with Rose, West, a nurse and single mom, said she became a surrogate to do something meaningful while earning money that could make her family more financially stable.
West said she contacted a surrogacy agency and was matched with the California couple, and they entered into an agreement. She told Kelly that she felt confident after talking with the couple that if a health issue came up, “termination would not be their first choice.”
Her pregnancy had gone smoothly until around 20 weeks, when she had an ultrasound that suggested a heart defect. The intended parents, West said, were on a video call with her during the appointment. West said she later saw a specialist to confirm the hypoplastic left heart syndrome diagnosis.
The situation changed “quickly” after that, she said in the interview with Rose.
A few days after the diagnosis, a liaison from the surrogacy agency told her that the couple wanted to terminate the pregnancy, West said. She made an abortion appointment in Seattle but struggled with the idea of ending her pregnancy, she said. As she changed her mind, a mutual friend connected her with Rose.
It’s unclear what the next phase of this legal battle will look like, but antiabortion activists are eager to keep pressing the issue.
John Seago, the president of Texas Right to Life, said he hopes the state legislature will address the legal grounds for a surrogate like West, who he said was “fighting for the life of the child.”
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