The U.S. Supreme Court has declined to intervene in a high-profile surrogacy and parentage dispute involving a seriously ill baby born in Texas after the surrogate refused the intended parents’ request to end the pregnancy.
Justice Elena Kagan on Tuesday denied an emergency application from surrogate McKenna West, leaving in place a California court order recognizing Omar Ahmed and Nausheen Gilkar as the child’s legal parents. Kagan, who handles emergency matters arising from California, issued the denial without an explanation. The decision does not resolve the broader legal issues in the case on their merits.
The dispute began after the baby was diagnosed during pregnancy with hypoplastic left heart syndrome, or HLHS, a rare and life-threatening heart defect. Ahmed and Gilkar asked West to terminate the pregnancy following the diagnosis, but West refused.
West, who lives in Alaska, eventually traveled to Texas, where she gave birth to the boy in Dallas in August. The baby has since required intensive medical treatment for his heart condition.
What began as a disagreement over the pregnancy soon developed into a complicated legal fight spanning California and Texas over parentage, custody and who has the authority to make medical decisions for the child.
West takes the fight to the Supreme Court
West filed an emergency application with the U.S. Supreme Court on Sept. 9 seeking to halt the California judgment recognizing Ahmed and Gilkar as the child's legal parents.
At the center of West's emergency request was concern about the baby's medical care. West argued that allowing the California ruling to remain in effect could result in the child being moved from Texas and potentially placed in hospice care rather than continuing life-prolonging treatment.
Ahmed and Gilkar strongly disputed that characterization.
In their Supreme Court response, the couple said there was “no truth whatsoever” to the hospice allegation. They pointed to their decision after the child's birth to proceed with the first surgery typically performed on children with HLHS and maintained that they intended to continue medically appropriate treatment for their son.
Their dispute was therefore not simply over whether the child would receive medical care, but also over who legally controls those decisions and where that care should take place.
Texas Supreme Court clears way for transfer
West also sought help from the Texas Supreme Court in an effort to prevent the child from being moved out of the state.
That court declined to stop the transfer on Sept. 17, saying that “sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter.”
The Texas Supreme Court cited medical testimony from the child's Texas physician indicating that “the child’s best interest in order to preserve the child’s life as long as possible [i]s an ICU-to-ICU transfer of the child” and that “the timing of the recommended transfer is ripe now, with the window only open for a short time to do so.”
The court said the materials before it did not rebut that medical assessment or cast doubt on a lower court's conclusion that the transfer would facilitate access to time-sensitive treatment.
Importantly, the Texas Supreme Court said West's underlying petition remained pending and that its order did not rule out additional relief if circumstances changed.
Ahmed and Gilkar made a similar argument before the U.S. Supreme Court.
“As the Supreme Court of Texas recognized, Applicant's purported ‘emergency’ is non-existent,” their response said. “Rather, inserting Applicant into the medical decision-making would run counter to medical advice and could be disastrous for Respondents’ child.”
Both sides respond to Supreme Court decision
West's attorneys expressed disappointment after Kagan rejected the emergency request but said the litigation had helped secure assurances about the child's continued treatment.
“While disappointed at the Supreme Court’s ruling, McKenna takes great comfort in how these legal proceedings have prompted the contracting parents to say they are committed to provide the baby with the lifesaving care he needs,” attorney Lincoln Davis Wilson said in a statement.
“That’s what McKenna has been fighting for from day one,” Wilson added.
Adam Wolf, an attorney representing Ahmed and Gilkar, welcomed the decision, saying the parents were “grateful that the baby can continue receiving the treatment he needs to survive, and that he will not be stripped away from his parents, who are ensuring their child receives top-notch medical care.”
Kagan's decision leaves the California parentage ruling in effect for now, but it does not necessarily mark the end of the legal battle. West's emergency filing indicated that her attorneys plan to file a petition for certiorari asking the Supreme Court to consider the broader case on its merits.
