Supreme Court declines to intervene in California surrogacy custody case
Justice Elena Kagan rejected an emergency appeal from surrogate McKenna West, leaving a California court's order naming the intended parents as the child's legal parents in place.
The U.S. Supreme Court on Tuesday refused to hear an emergency appeal filed by surrogate McKenna West, leaving a California court order that recognizes Omar Ahmed and Nausheen Gilkar as the legal parents of a newborn with a severe heart defect untouched. West, who gave birth in Texas after refusing the couple’s request for an abortion, asked the Court to lift the order, arguing that the parents were trying to block lifesaving treatment for the infant.
The California couple had a surrogacy contract that allowed them to request termination of the pregnancy if a fetal abnormality was diagnosed. After a 20-week scan revealed hypoplastic left heart syndrome, the couple sought an abortion, but West traveled to Texas, where abortions are prohibited after about six weeks, and delivered the baby, whom she named Gabriel. The couple named the child Rumi.
A Texas court later ruled that Ahmed and Gilkar, not West, would make medical decisions for the child and ordered the hospital to provide necessary care. The infant underwent a Norwood procedure, the first of three surgeries typically required for his condition. Texas Attorney General Ken Paxton initially intervened to secure the order but has since withdrawn from the case.
West’s lawyers contended that under Texas law she would be considered the mother and that the California order threatened the child’s access to care. Ahmed and Gilkar’s attorneys responded that they have been present with the baby in the pediatric intensive care unit and have been overseeing his critical medical treatment.
"Respondents have been with their child around the clock in a hospital's pediatric intensive care unit," the couple’s lawyers wrote.
"The child has been receiving critical medical care by his team of doctors at the consent and direction of Respondents."
Justice Kagan, who handles emergency appeals from California and neighboring states, declined to grant the emergency relief, leaving the existing parental and medical decision-making orders in place.