The U.S. Supreme Court on Tuesday declined tointervene in the custody battle between an Alaska surrogate and a California couple over a baby born in Texas with a heart defect.
Without issuing an opinion, Supreme Court Justice Elena Kagan denied Alaska surrogate McKenna West's emergency application for the court to pause a California court's order declaring husband and wife Nausheen Gilkar and Omar Ahmed the legal parents of a newborn boy to whom West gave birth last month.
Kagan is the justice assigned to oversee appeals from California and other west coast states.
“While disappointed at the Supreme Court’s ruling, McKenna takes great comfort in how these legal proceedings have prompted the contracting parents to say they are committed to provide the baby with the lifesaving care he needs,” Lincoln Davis Wilson, one of West’s attorneys with the conservative law firm First and Fourteenth, said in a statement Tuesday. “That’s what McKenna has been fighting for from day one.”
KERA News reached out to attorneys for the couple for comment and will update this story with any response.
The denial may indicate the court’s reluctance to wade into a case that highlights the ethical gray areas around surrogacy and the patchwork of surrogacy and parental rights laws across Alaska, California, Texas and other states.
West fled to Texas to give birth to the child months after Gilkar and Ahmed — the boy's intended and genetic parents — requested West get an abortion after doctors detected hypoplastic left heart syndrome, a rare fetal heart defect, around 20 weeks into the pregnancy. West has argued she's the child's mother under Texas law because she gave birth to him.
Gilkar and Ahmed named the child Rumi, but West and her legal team refer to the newborn as Baby Gabriel.
At an August hearing in Dallas, Gilkar confirmed she and her husband requested West get an abortion but testified they pivoted to seeking medical care for the child in California once West refused. West testified she didn’t believe the couple was committed to pursuing life-saving care for the newborn.
The Dallas judge upheld the California court's order earlier this month and dismissed West from the case. West then asked the U.S. Supreme Court to overturn that order, arguing Ahmed and Gilkar didn’t properly serve her notice of the parentage case they opened in California, violating West’s due process rights.
The Dallas trial court also vacated an emergency order requested by Texas Attorney General Ken Paxton that restricted the child’s care to Children’s Health Dallas. West appealed the vacating of that order to the Texas Supreme Court.
According to Gilkar and Ahmed’s status report filed with the Texas high court, the chief pediatric cardiologist at Children’s Health Dallas testified in the trial court that moving the baby from Dallas to Children’s Health Los Angeles was best for the boy’s long-term health and prognosis. The couple also denied considering hospice care for the boy.
Last week, the Texas Supreme Court cleared the way for Gilkar and Ahmed to take the newborn back to California for medical care.
“Sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter,” the court wrote in a brief order.
As of late August, doctors performed the Norwood procedure on the newborn — the first of at least three surgeries needed to treat hypoplastic left heart syndrome.
Toluwani Osibamowo is KERA’s law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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