Supreme Court Upholds Corporate Surrogacy System, Ignores Surrogate Mother's Plea in California Custody Case
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Justice Elena Kagan rejected an emergency appeal from surrogate McKenna West, allowing a California court's order to stand and reinforcing the power of wealthy intended parents over the woman who gave birth.
On Tuesday, the U.S. Supreme Court once again sided with entrenched power structures, refusing to hear an emergency appeal from surrogate McKenna West. This decision leaves intact a California court order that designates Omar Ahmed and Nausheen Gilkar—the intended parents with financial means—as the legal parents of a newborn suffering from a severe heart defect. West, who carried and delivered the child in Texas after bravely refusing the couple’s demand for an abortion, had sought the Court’s intervention, arguing that the intended parents were obstructing lifesaving treatment for the infant.
The California couple had exploited a surrogacy contract that gave them the authority to request termination of the pregnancy if a fetal abnormality was detected. When a 20-week scan revealed hypoplastic left heart syndrome, Ahmed and Gilkar attempted to enforce their will, but West, showing agency and compassion, traveled to Texas—where regressive abortion bans are in effect—and delivered the baby, whom she named Gabriel. The intended parents, erasing her role, named the child Rumi.
A Texas court, prioritizing the interests of the intended parents over the surrogate’s rights, ruled that Ahmed and Gilkar would control medical decisions for the child and ordered the hospital to provide necessary care. The infant underwent a Norwood procedure, the first of three major surgeries for his condition. Texas Attorney General Ken Paxton initially intervened to support the order but has since withdrawn, leaving West to fight alone.
West’s legal team argued that under Texas law, she should be recognized as the mother and that the California order endangered the child’s access to care. Meanwhile, Ahmed and Gilkar’s lawyers insisted that they were present with the baby in the pediatric intensive care unit, overseeing his critical treatment—an assertion that highlights the legal system’s preference for those with resources.
"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, responsible for emergency appeals from California and neighboring states, declined to grant relief, leaving the existing orders in place and reinforcing a system that prioritizes contracts and wealth over the lived experiences and rights of women like McKenna West.