The very human heartbreak of McKenna West’s surrogacy should not be tabloid fodder, and it should not be a political football. But it is both, because the fertility industry in the United States is dangerously underregulated — a state of affairs that has only been further complicated by the fall of Roe.
West, a nurse and single mother who resides in Alaska, was a surrogate for a couple, Omar Ahmed and Nausheen Gilkar, who live in California. In the gestational surrogacy agreement that both parties signed, West agreed to terminate the pregnancy if there was a fetal abnormality and the intended parents requested it, and she acknowledged that if she did not abide by the parents’ wishes, their financial responsibility to her would end. After a scan at 20 weeks, the fetus was diagnosed with a serious birth defect, hypoplastic left heart syndrome, and that’s when everything went sideways.
The intended parents requested that West terminate the pregnancy, and she refused. After it was clear that West would continue the pregnancy, a legal battle then commenced in Alaska courts about whether the original agreement could be enforced and then where she would give birth: There were no Alaska hospitals equipped to support an infant with that heart defect. The parents wanted West to give birth in California, where they lived and could provide ongoing care for the child. Instead, West fled to Texas, where since 2022 there has been a near-total ban on abortion.
Before this trip, West connected with the anti-abortion and anti-surrogacy activist Lila Rose, who got West in touch with the Alliance Defending Freedom, a conservative Christian legal organization that is now representing her and helped with her travel. Once she was in Texas, the far-right attorney general Ken Paxton, who is running for Senate, intervened in the case.
The child, a boy, was born on Aug. 12, but that did not end the legal wrangling. Though court orders in Texas and California gave custody and the right of medical decision making to Ahmed and Gilkar, they are not allowed to leave Texas for the near term, and West is trying to gain custody of the baby.
This is such a sad, sorry situation: A very sick baby, distraught and embattled intended parents and a surrogate who feels that her consent has been disregarded.
Many surrogacy arrangements come off without a hitch, with the surrogate, the parents and the child healthy and happy. But when debacles like this one happen, the moral compromises that are an inherent part of surrogacy come into full view. And the way it is defined by state law is part of the issue.
That’s because every state has different laws about surrogacy and there is no federal legislation about the practice. Even when states have somewhat detailed statutes and when the parties involved are meticulous, legal and ethical quandaries are revealed by edge cases, like West’s.
The cliché that’s often used about the entire field of assisted reproductive technology — which also includes in vitro fertilization and egg freezing — is that it is the Wild West. It’s especially true about commercial surrogacy, which is illegal in some countries (ones with more permissive abortion laws than the United States has) because it brings up so many complicated moral issues.
A different and truly sinister situation unfurling in California this year illustrates the absurd lack of regulation and the depressing consequences. A couple with at least 21 children, mostly born via surrogates, and several more on the way were accused of child abuse, and their children were removed by the state.
Ava Kofman of The New Yorker explained that this was a predictable outcome in a country where surrogacy agencies are less regulated than hair salons and day cares. “No qualifications are needed for the intimate, unpredictable work of bringing strangers together to create a new life. (Only one state, New York, even requires a specialized license.)” She added, “Using an agency, in fact, is entirely optional. You can hire a surrogate — or several at a time — and negotiate the arrangements largely on your own.” In 2013 a very similar situation to West’s happened in Connecticut. The parents wanted a termination, and the surrogate didn’t, and the surrogate fled to Michigan, where she gave birth.
Ideally in the United States, we would not have this patchwork free-for-all, and there would be more clarity earlier in the process for intended parents and surrogates alike. We would have a federal law that took into account “protecting the interests of all parties,” said Arthur Caplan, a past head of the division of medical ethics at N.Y.U. Grossman School of Medicine who has studied the ethics of surrogacy for decades.
A federal law could require independent legal representation for the intended parents and the surrogate, as well as ongoing psychological support. It would make sure that surrogates have proper medical insurance, funded by the intended parents, if necessary. (Our lack of universal health care only further complicates surrogacy.) It would also take into account the medical and psychological needs of children after they are born. As Caplan argued in an opinion essay in STAT in October, surrogacy agencies should be required to be completely transparent about their screening practices.
State Senator Liz Krueger of New York, with input from Caplan, proposed legislation in 2023 that would have established “a comprehensive informed consent process to help ensure that all parties fully understand how surrogacy and gamete donation work, the risks involved and their rights” before entering into a surrogacy agreement, but the legislation died in committee.
It’s possible that such a federal law could have prevented at least some of the drama in a situation like West’s, because she might have better understood what she was agreeing to. (More on that in a second.) But maybe not, because “we’re still in the middle of the abortion wars,” Caplan told me, which makes this cross-state morass an even more intractable disaster. Post-Roe, surrogacy legislation is bound up with the next step in the right’s war against abortion, which is about fetal personhood.
Still, he said that if tighter regulations are not enacted on surrogacy soon to make it more humane and equitable, it may be fully banned in the United States, and I agree with him. There are so many institutions and people against surrogacy, from members of the United Nations to the pope, and there’s evidence that more Republicans are moving to prohibit the practice.
Ahmed and Gilkar did a lot right, given the lack of larger regulation, but they were unlucky. West had her own legal representation and psychological support when she signed the contract. But she claimed, in a lawsuit filed in Alaska with the Alliance Defending Freedom, that her legal representation was compromised by a close relationship with the surrogacy agency and that her lawyer had failed to “highlight the abortion clause when she sent the surrogacy agreement to McKenna to review.” (I reached out to West’s current counsel, and the Alliance Defending Freedom would provide only a link to a press release.)
That seems somewhat at odds with what West told Megyn Kelly in an interview this month. West said that she talked about abortion with the intended parents when they met and that they had told her “they weren’t exactly sure what decision they would make if something came up, but they ultimately just wanted to be parents, and so I felt confident moving forward with them that termination would not be their first choice.”
Even so, West is right to assert that no one should be able to coerce a woman into terminating a pregnancy against her wishes. Bodily autonomy must extend to surrogates, no matter what contract they signed.
The most charitable read for all involved is that they went in with good intentions and optimism: They all dreamed that the baby and surrogate would be well and that the birth would take place, uneventfully, in Alaska. Unfortunately that’s not what happened, and the intrusion of politically motivated forces into this painfully human struggle is only making it worse.
The boy — named Baby Gabriel by West and Rumi by his intended parents — is now here, and his intended parents should be allowed to care for this very fragile child without the intrusion of a state where they and their surrogate don’t even reside.
I hope for Ahmed’s and Gilkar’s sakes that they can return to California soon and start healing as a family. I hope West can return to her life, her work and her children in Alaska and that she can find a way to heal from this experience, too.
End Notes
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I saw “Tony,” the Anthony Bourdain biopic, and it washed over me like a warm bath. I particularly loved the performance of Stavros Halkias, whose podcast and stand-up specials have long had a place in my dirtbag heart. (In another life he would have been a great therapist. After roasting his listeners, he answers their questions with true insight into the human condition.) Listen to the “Popcast” interview with him here. “Tony” also inspired me to rewatch an excellent documentary about Bourdain, “Roadrunner,” which is streaming on HBO Max. And if you haven’t read it, I still recommend “Care and Feeding,” the memoir by his assistant Laurie Woolever, which I shouted out in a newsletter last year.
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