US Supreme Court Declines to Intervene in Surrogacy Custody Fight After Surrogate Refused Abortion
The U.S. Supreme Court has declined to intervene in a high-profile custody dispute involving an Alaska surrogate and a California couple after the surrogate refused the couple’s request to terminate the pregnancy following a diagnosis of a serious fetal heart defect. Justice Elena Kagan rejected McKenna West’s emergency application on September 22, leaving in place a California court order recognizing Omar Ahmed and Nausheen Gilkar as the child’s legal parents.
The dispute began during West’s pregnancy after a 20-week ultrasound identified hypoplastic left heart syndrome, or HLHS, a severe condition affecting the development of the heart’s left side and its ability to circulate blood normally. According to court filings, the intended parents subsequently requested that West terminate the pregnancy under provisions of their surrogacy agreement concerning fetal abnormalities. West refused and continued the pregnancy.
West subsequently traveled to Texas and gave birth to the baby, whom she calls Gabriel, on August 12. The intended parents refer to him as Rumi. The infant was born with the diagnosed heart condition and underwent surgery shortly after birth. The child has remained at the center of the competing claims over parental authority and medical decision-making.
Before the birth, the California couple went to court seeking a declaration of their parental rights. A California court ultimately recognized Ahmed and Gilkar as the child’s legal parents. West challenged that ruling and sought custody or conservatorship, arguing that she should have a role in decisions concerning the child’s medical treatment. Several courts declined to suspend the California parentage ruling.
West then turned to the U.S. Supreme Court, asking it to halt enforcement of the California order while her legal challenge continued. Her lawyers argued that the ruling had effectively prevented her from participating in decisions concerning the medically fragile child and raised constitutional questions involving parental rights and jurisdiction.
The Supreme Court’s response came through Justice Kagan, who handles emergency applications arising from California and other jurisdictions covered by the Ninth Circuit. Kagan rejected the emergency request without providing an explanation. Such brief orders are common in the Supreme Court’s emergency docket and do not necessarily resolve the underlying legal questions presented by a case.
The ruling therefore does not amount to a comprehensive Supreme Court decision establishing new nationwide rules governing surrogacy agreements, abortion provisions in those agreements, or parental rights of gestational surrogates. Instead, it leaves the existing California parentage determination in effect while the broader litigation continues through the applicable legal process.
The dispute has also involved proceedings in Texas, where West went to give birth. A Texas court became involved in questions concerning the infant’s medical care and whether the child could be transferred for treatment. The Texas Supreme Court recently ruled that the child could leave Texas and be moved to a Los Angeles hospital for medical treatment, with the court emphasizing the need to protect the medically fragile infant.
Medical treatment has remained an important part of the dispute. The child was born with HLHS, a condition that can require multiple procedures and, in some cases, further surgery or transplantation. The Centers for Disease Control and Prevention notes that untreated HLHS can be fatal and that surgical treatment does not necessarily constitute a permanent cure.
West has argued that the intended parents’ earlier request for an abortion raises concerns about whether they will pursue what she considers necessary treatment for the child. The couple has rejected that characterization and has maintained that it is committed to obtaining medical care for the baby. Their lawyers told the Supreme Court that further intervention would create additional uncertainty during an already complex medical situation.
The case has attracted attention beyond the immediate custody dispute because it intersects several difficult areas of American law, including assisted reproduction, contractual surrogacy, abortion, parental rights, interstate jurisdiction and medical decision-making for seriously ill children. The Supreme Court’s refusal to intervene at this stage means those questions remain largely unresolved at the national level.
For now, the California couple remains recognized as the child’s legal parents under the California order, while West’s effort to obtain custody or a formal role in the child’s medical decisions has not succeeded. The Supreme Court’s September 22 action was limited to declining emergency intervention and did not issue a detailed opinion addressing the competing claims.
