A surrogate who refused to end a pregnancy after doctors discovered the baby had a serious heart condition has now taken her legal fight to the US Supreme Court. But the baby’s intended parents are pushing back hard, accusing her of making false claims about them and their son’s medical care.
McKenna West, an Alaska nurse, carried the baby for California couple Nausheen Gilkar and Omar Ahmed.
After the baby was diagnosed with a rare heart defect, the couple asked West to terminate the pregnancy.
However, she refused and later traveled to Texas, where the baby was born and underwent heart surgery.
Now, with the newborn still critically ill, the dispute has turned into a multistate legal battle over who has parental rights and who gets to make the medical decisions.
Biological parents have accused a surrogate mother of making “defamatory lies” about the baby
West’s lawyers filed an emergency application with the Supreme Court, asking Justice Elena Kagan to temporarily block a California ruling that recognizes Gilkar and Ahmed as the baby’s legal parents.
The couple’s attorney, Lee Budner, strongly rejected West’s latest filing. He accused her of including “defamatory lies about Rumi’s parents and his medical care, and mischaracterizations of the law.”
Budner also pointed to previous court decisions in Alaska, California and Texas that have gone against West.
“This means that every Court to consider McKenna West’s claims has ruled that Rumi’s parents are Omar and Nausheen,” he said.
The parents said they remain focused on their son, who is still in a neonatal cardiac intensive care unit.
“Omar and Nausheen spend every day at Rumi’s side,” Budner said, adding that they are following the recommendations of the baby’s medical team.
The dispute began after West refused the abortion when the baby was diagnosed with a heart defect
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The dispute began during a 20-week ultrasound, when doctors discovered that the baby had hypoplastic left heart syndrome (HLHS).
HLHS is a rare condition in which the left side of the heart is severely underdeveloped. Babies born with the condition usually need several major surgeries beginning shortly after birth, per Cleveland Clinic.
According to West’s court filing, Gilkar and Ahmed asked her to terminate the pregnancy under a section of their surrogacy agreement covering serious fetal abnormalities.
However, West refused.
She told the surrogacy agency that she could not abort “this precious baby” after feeling him move and learning that treatment was available.
She also offered to raise the child herself or arrange an adoption if the couple no longer wanted him.
Her lawyers later alleged that she was warned continuing the pregnancy could expose her to more than $250,000 in financial penalties.
West ultimately traveled from Alaska to Texas before giving birth.
As soon as the baby was born in Texas, he underwent heart surgery
The baby, whom West called Gabriel and his parents call Rumi, was born on August 12 in Texas.
Because of the HLHS diagnosis, Texas Attorney General Ken Paxton obtained an emergency order requiring the hospital to provide lifesaving treatment and preventing the baby from being removed from the state.
West later said she had only about a minute with the newborn while his umbilical cord was still attached before he was taken from her.
A court order then prevented her from seeing or holding him.
The baby underwent his first open-heart surgery on August 17. His condition later declined, and court filings said he had to be placed back on a breathing tube.
During a hearing, Gilkar described how difficult the baby’s condition had become.
“He’s our child,” she said. “He’s the love of our lives.”
She also said the newborn was “suffering a lot” as he struggled to breathe, dealt with tubes, and needed a blood transfusion after surgery.
A major point of disagreement is what Gilkar and Ahmed intend to do about the baby’s medical care
West has argued that she fears the couple may not be committed to continuing lifesaving treatment, per Live Action.
Her Supreme Court filing alleged she believes they could eventually choose hospice care instead of further surgery.
The couple has denied that accusation.
During an August 25 hearing, Gilkar directly addressed the claim, saying, “Denying lifesaving care is not true. “We are devastated … We’ve never wanted anything more than those babies.”
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West has also said she would be willing to abandon her custody fight if a court determined that the intended parents were committed to providing the baby with lifesaving care.
The baby’s first surgery was performed after doctors determined he was eligible for the procedure.
His parents’ lawyer said he was recovering under the care of his parents and medical team, although his condition remained critical and complex.
The courts have so far sided with Gilkar and Ahmed on the question of legal parentage
A California court declared them the baby’s legal parents on June 22. West then failed to persuade three state courts to stay that ruling.
On September 2, a Texas judge gave full credit to the California judgment and removed West from the case.
That decision means West is currently shut out of information about the baby and cannot participate in decisions involving his care.
Her lawyer has argued that Texas law should recognize the woman who gives birth as the child’s mother.
“We are working on challenging those orders of parentage because we think that Texas law makes a woman who gives birth [to] a child the mother of the child,” attorney Lincoln Davis Wilson told CBS News.
West has also argued that she never properly consented to the California court’s jurisdiction. Her lawyer said she appeared there only to challenge whether California had authority over the dispute.
The California court disagreed, finding that her 147-page filing effectively showed consent because it addressed the case’s substance.
West’s lawyers countered that most of those pages were exhibits supporting her jurisdictional challenge.
“Any reasonable view of consent would recognize that ‘no’ does not mean ‘yes,’” they wrote.
Also, West’s emergency Supreme Court application is not asking the justices to decide who the baby’s legal parents are immediately
West’s lawyers want the California ruling temporarily blocked so she can potentially return to the Texas proceedings and have a say in the case.
They argue that waiting for a final decision could be dangerous because the baby’s medical condition is so serious.
“Unless this Court provides relief from that judgment, M.W. will have no access to information about Baby G.’s condition,” her lawyers wrote.
They added that a later victory could come too late to help the child.
The Supreme Court has not yet ruled on West’s request. Justice Kagan handles emergency matters involving the 9th Circuit, which includes California.
An attorney who is not involved in the case said West faces difficult odds because emergency Supreme Court relief is rarely granted. The justices generally do not intervene in family disputes.
Netizens shared their opinion on the ongoing legal battle
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