McKenna West signed a surrogacy agreement. Months later, doctors discovered that the baby she was carrying had hypoplastic left heart syndrome, a severe congenital heart defect.
Omar Ahmed and Nausheen Gilkar, the California couple who arranged the pregnancy, wanted it terminated.
West refused.
Now the dispute has reached the U.S. Supreme Court, where West filed an emergency application Wednesday asking Justice Elena Kagan to temporarily block a California judgment recognizing Ahmed and Gilkar as the child's legal parents while she seeks further review.
The immediate legal fight involves parentage, jurisdiction, and who may make decisions for a critically ill infant. But buried underneath those questions is one that should make almost anybody uncomfortable, regardless of where they stand on abortion.
How much control over a woman's body can she sign away before becoming pregnant?
West's surrogacy agreement addressed abortion directly. Court filings say she agreed to follow the intended parents' decision concerning termination of the pregnancy.
Refusal could constitute a material breach, end their financial responsibility to her, require repayment of money already spent, and expose her to additional damages.
West knew the clause existed when she signed. Ahmed and Gilkar emphasize that fact. They argue she later violated an agreement she voluntarily entered.
Then pregnancy stopped being words on paper.
At about 20 weeks, doctors diagnosed the baby with hypoplastic left heart syndrome. West's court filings say arrangements were made for an abortion in Washington state. By 23 weeks, she had changed her mind; she believed the child had a chance to survive and couldn't go through with terminating the pregnancy.
The couple's court response acknowledges that West's refusal violated the termination provision of the agreement. West now argues in Alaska that the provision is unconstitutional, unconscionable, and contrary to public policy.
Her argument contains an irony worth examining.
For decades, abortion law was written so it was centered on protecting a woman's ability to decide whether to terminate a pregnancy without somebody else making the decision for her. West is invoking the same idea of bodily autonomy from the opposite direction. She says a woman's freedom to choose an abortion must also protect her freedom to refuse one.
She eventually traveled to Texas and gave birth Aug. 12. The couple calls their son Rumi; West calls him Gabriel.
Ahmed and Gilkar now have legal custody and have acted to obtain medical treatment for him. Their attorney said they immediately consented to the first major heart operation required for his condition, and the child underwent surgery Aug. 17.
From ABC News 7:
Omar Ahmed and Nausheen Gilkar hired McKenna West to serve as their surrogate. During the pregnancy, the fetus West was carrying was diagnosed with hypoplastic left heart syndrome, a life-threatening condition.
West said Ahmed and Gilkar wanted to terminate the pregnancy. West, who lives in Alaska, left for Texas and gave birth last week to a boy the couple named Rumi. Anti-abortion activists refer to the infant as "Baby Gabriel."
The couple now has custody of the child.
A statement released by Lee Budner, the couple's attorney, said that the baby underwent "a complex palliative heart surgery" that is the first of three surgeries required for his condition.
"My clients immediately provided consent for the surgery to occur at the hospital's earliest availability. Rumi was taken into the operating room for surgery earlier this morning (August 17th)," the statement said in part. "His condition remains critical and complex, and his family seeks privacy in caring for their son on his long road to recovery."
The statement said he is now recuperating with his parents.
Their present actions shouldn't be confused with the decision they made during the pregnancy.
West has also said that if a court is satisfied the parents will continue obtaining the surgeries and treatment the child needs, she would abandon her efforts to obtain custody. Ahmed and Gilkar say they love their son and accuse West of trying to take a child who was never genetically hers.
From the Texas Tribune:
“He’s our child,” Nausheen Gilkar said, wiping away tears on the witness stand.
“She’s unstable,” Gilkar said of surrogate McKenna West, who was sitting across from her in the Dallas courtroom. “She’s trying to take him from us.”
The hearing offered the fullest public airing to date of a deepening and high-profile dispute over surrogacy and abortion that has rushed right-to-life groups and GOP officeholders to the side of West, a nurse who flew from Alaska to have the baby on Aug. 12 in Texas, where most abortions are banned.
Gilkar and her husband, Omar Ahmed, say they named the newborn Rumi. Attorneys for West, who has called the child Gabriel, said she is seeking sole conservatorship to make medical decisions for the child.
It was not clear when the judge would issue an order in the case.
West told the court that she was 23 weeks pregnant when she made an appointment for an abortion at the couple’s urging but was not comfortable with it.
“I knew that this baby, despite the diagnosis, had a great chance at survival and a great chance at leading a long life,” West said.
The Supreme Court may never decide the larger abortion question. West's emergency request asks the justices to halt the California parentage judgment while she pursues review, and family law disputes rarely become major Supreme Court cases.
But the agreement already raises a question worth answering.
A contract can govern compensation; it can assign expenses, responsibilities, insurance requirements, and countless other obligations between adults.
Should it also be able to tell a woman that once she becomes pregnant, refusing an abortion can cost her thousands of dollars and make her liable for damages?
West signed the paper.
Then she was asked to undergo the abortion.
She said no.
Whatever happens to the custody case, nobody should need a Supreme Court ruling to understand why those three facts don't comfortably fit together.
Surrogacy, abortion, parental rights, and contract law have collided in one remarkable case, and the questions won't disappear when this particular fight ends. Help PJ Media keep digging into stories where law and culture meet. Join VIP today and get 60% off with the promo code FIGHT.
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