An Alaska cardiac nurse who carried a baby to term after refusing the intended parents' request for an abortion is asking the U.S. Supreme Court to intervene, arguing that a lower court ruling has left her unable to advocate for the medically fragile newborn. Attorneys for McKenna West filed an emergency application Wednesday with Justice Elena Kagan, who handles emergency matters from the 9th Circuit, requesting a temporary block of a Los Angeles court decision that named the California couple as the baby's legal parents.
West carried the child under a surrogacy agreement with Nausheen Gilkar and Omar Ahmed, who call the baby Rumi. West calls him Gabriel. The baby was born Aug. 12 in Texas with hypoplastic left heart syndrome, a rare condition in which the left side of the heart is severely underdeveloped. The legal dispute began after the condition was detected during a 20-week ultrasound, when West says the couple asked her to terminate the pregnancy under a provision in their agreement covering serious fetal abnormalities.
West refused, telling the surrogacy agency she could not abort the baby after feeling him move and learning that treatment was available. She offered to raise the child herself or arrange an adoption if the couple no longer wanted him, while allowing them to walk away from further financial obligations. Her attorneys allege she was then warned that continuing the pregnancy could expose her to more than $250,000 in financial penalties.
Gilkar and Ahmed turned to a California court to establish their legal rights as the baby's parents. West argued the case belonged in Alaska under the surrogacy agreement and said she appeared in California only to challenge the court's jurisdiction. The Los Angeles Superior Court determined that West had effectively consented to its authority by submitting a 147-page filing that addressed the substance of the issues. West's lawyers said most of those pages were exhibits supporting her jurisdictional challenge and that she had repeatedly refused to argue the underlying case.
West also claims she was never properly served, saying a FedEx package containing the court papers was delivered to her babysitter, who allegedly was not told what was inside. The California court declared Gilkar and Ahmed the baby's legal parents June 22, and West failed to persuade three state courts to put the ruling on hold. The judge acknowledged during the proceedings that the dispute may be a question of life and death for the unborn child, according to West's application.
The fight then moved to Texas, where West traveled so the baby could be delivered at a hospital equipped to treat his condition. Texas Attorney General Ken Paxton secured an emergency order before the birth directing the hospital to provide life-saving care and preventing the child from being removed from the state. West previously said she had only about one minute with the newborn while his umbilical cord was still attached before he was taken from her. A court order later barred her from seeing or holding him.
The baby underwent the first of three anticipated open-heart surgeries Aug. 17 and was later returned to a breathing tube after his condition declined. Gilkar said during a hearing last month in Dallas that the couple had remained at their son's bedside and accused West of trying to take him. She told the court the newborn was suffering as he struggled to breathe, choked on tubes, and required a blood transfusion following surgery.
West has said she would abandon her custody effort if a court determined the intended parents were committed to providing the child with life-saving care. But on Sept. 2, a Texas judge upheld the California ruling and removed West from the case. Paxton has also stepped away from the legal fight. West's attorneys argue she is now barred from receiving information about the baby or defending the order requiring his continued treatment, and they allege the couple is challenging that medical care order.
West is asking the Supreme Court to temporarily block the California ruling, which could give her a path back into the Texas case. Her attorneys argue the dispute raises a broader constitutional question over whether challenging a court's authority can itself be treated as accepting that authority. They stressed that temporarily blocking the ruling would not decide who the baby's legal parents are or direct doctors to provide a particular course of treatment. Without Supreme Court intervention, her attorneys warned, West will remain shut out of decisions about the child's care.