Surrogate appeals to Supreme Court in custody dispute over baby born in Texas with heart defect

A California couple’s surrogate who refused their wishes to have an abortion has asked the U.S. Supreme Court to intervene in a custody dispute over the 4-week-old child, who was born with a serious heart defect.

McKenna West filed the emergency appeal Wednesday amid a legal battle over surrogacy and abortion that has won the support of Republican officeholders and anti-abortion groups. West, a nurse who lives in Alaska, traveled to Dallas to give birth in August. Most abortions are banned in Texas.

West is asking the nation’s highest court to halt a California court order that recognizes Omar Ahmed and Nausheen Gilkar as the parents of the child whom she calls Gabriel, and they call Rumi.

West wants final custody or conservatorship because she believes the couple will not provide lifesaving care, citing their request for an abortion at 23 weeks.

The boy was born Aug. 12 with hypoplastic left heart syndrome, a life-threatening condition that prevents normal blood flow to the organ.

Just before his birth, the office of Texas Attorney General Ken Paxton intervened in the case and obtained an emergency court order requiring that the boy receive lifesaving medical care. 

“It was scary to think that something might be wrong, and that I may be the one that’s not able to make a decision about the treatment,” West said in an interview last month with Live Action, an anti-abortion rights organization.   

He underwent surgery soon after he was born. The couple’s attorney, Lee Budner, said in August that the newborn was in critical condition and appeared to be “suffering from potential complications.”

Surrogacy is not regulated at the federal level. Each state has its own laws, which can leave room for gaps in interpretation. The Supreme Court is not obliged to hear the case.

Ahmed and Gilkar have not yet responded to the Supreme Court filing. CBS News has reached out to the couple’s attorney for comment on the emergency petition.

The couple previously said West violated the surrogacy contract, and they obtained a restraining order from a Texas court preventing her from seeing or holding the child. That court also ruled that Ahmed and Gilkar, not West, are responsible for medical decisions.

Gilkar called West “mentally unstable” during a hearing Aug. 25 in Dallas, telling the court West was trying to take their baby away.

“He’s our child,” Gilkar said, wiping away tears.

During that hearing, Gilkar testified that West never told her or Ahmed that she was traveling to Texas, and alleged that West withdrew access to the child’s medical records, a claim which West admitted to in the hearing.

Gilkar told the court that she and her husband did request to terminate the surrogate pregnancy back in May because of the heart defect.

In the hearing, West said that she wanted custody of the child, but was open to the idea of dropping any custody claims if the couple agreed to the baby’s lifesaving care.

“Denying lifesaving care is not true,” Gilkar said in court. “We are devastated … We’ve never wanted anything more than those babies.”  

West and her attorneys argue that Gilkar and Ahmed are not committed to guaranteeing the baby will undergo surgeries or “life-saving care.”

Both sides were publicly silent after the Aug. 25 hearing, and the case file was sealed, but West’s Supreme Court filing says she lost her plea in Texas to win conservatorship of the child.

The Texas court granted full credit to the California judgment on Sept. 2, according to the filing.

The odds of the Supreme Court granting the appeal are low, said Marla Neufeld, an attorney who represents parents, surrogates and donors but who isn’t involved in this case. Emergency relief is usually extraordinarily difficult to obtain and the Supreme Court doesn’t usually get involved in family disputes, she said.

“The stakes of the decisions below are enormous,” West’s lawyers wrote in her plea to the Supreme Court, asking that she be recognized as the mother under Texas law. “But because of the unlawful California judgment, she has been dismissed with prejudice from the Texas proceedings and denied any information about or control over the medically fragile child.”

West believes Ahmed and Gilkar plan to put the baby into hospice care in California rather than let him undergo surgery that could save his life, according to the filing.

Without treatment, hypoplastic left heart syndrome can lead to death within days or weeks. Surgical repairs are not necessarily cures and additional surgeries or heart transplants may be needed, according to the U.S. Centers for Disease Control and Prevention.

According to the Cleveland Clinic, the baby will need a second surgery between 4 and 6 months of age, and then a third surgery between 18 months and 4 years old.

The couple has said they will not provide any updates to West about the child’s condition, the filing states.