Report: Surrogate mother’s court battle for child could affect practice of surrogacy in Texas

McKenna West, the surrogate mother who refused to abort the child following the diagnosis that he had a treatable heart condition, is now fighting for custody of him after giving birth in Texas this month. If courts side with West, the outcome could discourage surrogacy use in Texas, The Texas Tribune reported Aug. 19. 

Several public officials became involved to ensure the child received life-saving care at birth, as Zeale News reported. He received the first of three planned heart surgeries Aug. 17 and is recovering with his biological parents Nausheen Gilkar and Omar Ahmed, who have custody of the child, according to reports. The Texas Tribune reported that West had named the child Gabriel, but the couple has since named him Rumi. 

According to the outlet, the child’s parents deny that they were forcing West to have an abortion. 

West’s attorneys confirmed Aug. 18 that she is still pursuing custody of the child. The couple’s attorney Lee Budner said, according to The Texas Tribune, that West “continues to assert baseless claims for custody of Rumi, in violation of multiple courts orders out of both Alaska and California.”

“We look forward to quickly defeating those claims as Rumi’s parents focus on his health and safety above all else,” he added. 

The couple is from California and West, from Alaska, executed the surrogacy agreement in Alaska. Rachel Rebouché, a professor at the University of Texas School of Law who specializes in reproductive law, told the outlet that Texas family law generally recognizes the woman who gives birth in the state as the legal mother, and that West hopes this law will help her secure parental rights. 

“If the court does not recognize the surrogacy agreement and Gilkar and Ahmed’s parental rights, the court would have to apply default parentage rules that generally recognize the person who gives birth as the legal parent, Rebouché said. In this case, that would be West,” The Texas Tribune reported.

West’s gestational surrogacy agreement included an abortion clause that is common to such agreements, the couple’s attorney said in court filings, according to the outlet. Typically such a clause outlines in what circumstances the couple or surrogate could request an abortion. Rebouché explained that an abortion clause does not give the intended parents the ability to force the surrogate mother to have an abortion, but could impose financial penalties on either party for refusing terms of the contract. 

Dallas court records state that West is arguing that enforcing the abortion clause or penalizing her financially for refusing the abortion violates her right to “privacy and bodily autonomy,” according to the outlet. 

Marla Neufeld, a family attorney with Greenspoon Marder LLP, explained in the report that which state laws about surrogacy are triggered depends on where the surrogate mother physically is. Christine Andresen, an attorney with a Texas-based law organization specializing in surrogacy law, says the case raises the question of “how much power do we give the state over our private families?”

Andresen posited that if the appellate court or Texas Supreme Court does not take up the case, it is possible the issue could be raised in a legislative capacity. 

The next hearing is scheduled for Aug. 25. 

Andresen also suggested that if the case does reach the state supreme court and the state’s family code is somehow modified, “it’s likely to make surrogacy more cumbersome in some way and less accessible to middle class people.” She noted that wealthier intended parents could look into surrogate agreements out of state. 

A number of pro-life advocates have praised West for protecting the child from death. Catholic ethicist Charlie Camosy spoke out this week lamenting that West now has a restraining order preventing her from seeing the baby.

He called for surrogate mothers to be protected, “both from attempts to force her to kill the child inside her and from unjust laws that make her unable to care for children such as Gabriel when the techno-parents prove violent in their intentions.”

“It is outrageous that a restraining order means that West cannot see the child she carried and protected,” he wrote in an Aug. 19 Washington Examiner article. “It should go without saying that parents who mark their child for death should not be given priority when it comes to custody of the child after birth.”