Baby with heart defect born to surrogate must receive treatment, Texas court rules, amid multi-state legal battle

A baby with a rare heart defect was born to a surrogate in Texas on Wednesday, one day after state Attorney General Ken Paxton intervened in the case to ensure the child received lifesaving medical care after birth, an organization representing surrogate McKenna West and her lawyer said.  

West, who is from Alaska, was about 20 weeks pregnant when the baby was diagnosed with hypoplastic left heart syndrome, a rare and serious congenital condition where the left side of the heart is underdeveloped, Paxton’s office said. 

The intended parents, identified in court documents as Nausheen Gilkar and Omar Ahmed of California, requested West undergo an abortion after they learned about the diagnosis, Paxton’s office said. But West refused and traveled to Dallas County, Texas, “for protection,” the office said, and to ensure that the child, identified in the news release as Gabriel, “could be near doctors experienced in treating his condition.” 

Children with hypoplastic left heart syndrome typically need three surgeries, the first within two weeks of birth, according to the Cleveland Clinic. The second surgery is performed at 4 to 6 months, and the third between 18 months and 5 years old. The heart condition is rare and complex, the Cleveland Clinic says, and can cause lifelong complications. 

West’s lawyer, Lincoln Wilson Davis, told CBS News that so far, outside of the known heart condition, signs were positive. Beyond that, he was unable to say where the child is now or exactly who is caring for the child, citing the court order.

Davis and Jacqueline Ribiero, a media relations manager for the anti-abortion advocacy group Alliance Defending Freedom, confirmed to CBS News that West had given birth on Wednesday. The organization is managing communications for West’s lawyer.

A Texas court order was issued requiring that lifesaving care must be provided once Gabriel was born. The court also issued a restraining order that says Ahmed and Gilkar, not West, are responsible for medical decisions within the requirements of the court order. 

Due to these orders, Davis said West was not allowed any contact with the child after birth. He said she does plan to continue her efforts to gain custody of the child.

It was not clear if Gilkar and Ahmed were present when West gave birth or what medical care was provided immediately after the baby was born. An attorney for Gilkar and Ahmed did not immediately respond to a request for comment about the case.   

Gilkar and Ahmed had previously asked a California court to order West to give birth there. 

In explaining the intervention, Paxton’s office said the baby’s treating physicians determined that “surgery offers a meaningful chance of survival” for the child, and noted that he will “live with significant lifelong disabilities” after the operations.

Paxton’s office said that any gestational agreement between West and the intended parents should not govern whether the child receives care after birth. Texas law protects any baby born in the state, the office said. 

An Alaska court previously ruled that West can make her own medical decisions. 

“The question the Court must prepare to answer is not whether a gestational agreement is enforceable,” Paxton’s office wrote in the court filing. “The question is whether any adult, whatever parental title he or she holds, may decline life-saving surgery for a newborn who can live, because the child will live with disabilities.” 

In a separate letter to UT Southwestern and Children’s Medical Center of Dallas, Paxton requested that the facilities provide care and prevent Gabriel from being taken out of state. The two hospitals did not immediately respond to a request for comment from CBS News. 

According to the court order, the hospital and treating physicians must inform the court and involved parties when the baby is born, as well as of any medical developments. The order also appointed a guardian ad litem to represent Gabriel, and said that if treatment is refused, the court will convene an emergency hearing to determine whether to intervene. 

“Baby Gabriel deserves a chance at life, and I will not allow anyone to unlawfully deny him medically necessary care,” Paxton said in a statement Tuesday. “My office will use every tool available to protect innocent lives and ensure that every child receives the care required under Texas law.”  

In a statement, Texas Gov. Greg Abbott said the state’s “laws protect every child born in Texas and guarantee their right to life. The Department of Family and Protective Services holds authority under Texas law to protect children from medical neglect. DFPS will be closely monitoring this case and will take any action necessary to safeguard those rights.”

West, Gilkar and Ahmed have not publicly spoken about the case. The three were scheduled to appear in court again on Aug. 25. It’s not clear if the baby’s birth will lead to an earlier court date.  

Worldwide Surrogacy Specialists LLC, the agency that connected West, Gilkar and Ahmed, told CBS News in a statement that it supports the rights of both surrogate and intended parents. 

The agency said it believes the matter “should have been referred to mediation where all parties would have been urged to consider the best interests of the child who will face severe hardship upon his birth, and to reach a settlement so that upon his birth, the child would be surrounded by love, not lawyers and litigation.”