A surrogate mother who declined to terminate her pregnancy has turned to the US Supreme Court in an emergency bid to step into a fast-moving custody dispute involving a four-week-old baby born with a severe heart condition.
McKenna West, 28, submitted the urgent appeal on Wednesday, escalating a closely watched surrogacy and abortion case that has drawn backing from Republican officials and prominent anti-abortion organizations.
West and her legal team have repeatedly argued that she should be granted authority to make decisions for the infant, who has been in the care of his biological parents since his birth on August 12.
However, West was removed from the Texas court proceedings on September 2, a move her filing says left her unable to receive updates about the child or challenge decisions tied to a court order requiring that his medical treatment continue, according to documents obtained by Our News Outlet.
She is now asking the nation’s highest court to pause a California order naming Omar Ahmed and Nausheen Gilkar as the baby’s legal parents. West refers to the child as Gabriel, while the couple calls him Rumi.
In her Supreme Court application, West contends that the California judgment was issued in what she described as a serious violation of federal due process, arguing that the case merits review and reversal.
She also alleges that she was brought into the California proceeding with only two days’ notice and without proper service before the judge entered the ruling.
West, who has two biological children of her own, is seeking either permanent custody or conservatorship of the baby, saying she fears the couple will not pursue life-saving treatment for him. Her concerns, she argues, are rooted in their earlier request for an abortion at 23 weeks.
McKenna West, 28, filed an emergency plea with the US Supreme Court to intervene in an ongoing custody battle over the four-week-old child she birthed
Nausheen Gilkar and Omar Ahmed, the biological parents of a baby boy a surrogate refused to abort opened up last month about why they felt using a surrogate was their only option
Her lawyers claim in the filing that the child could be removed from the Texas hospital where he received surgery soon after he was born for hypoplastic left heart syndrome, a life-threatening condition that prevents normal blood flow to the organ.
Ahmed and Gilkar may even take the child back to their home state of California for hospice ‘despite his treatable condition’ by September 17.
‘Without a stay, the Commissioning Parties may halt life-saving care for Baby G before this Court can even consider a petition for certiorari, much less rule on the merits,’ the petition reads.
‘And that can happen before [West] gets word of anything.’
The petition goes on to argue ‘time is of the essence,’ after the couple’s own attorney said in an August court hearing 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 responded to the Supreme Court filing.
West and her attorneys have repeatedly pushed for the surrogate to have decision-making authority over the baby, who has remained in his biological parents’ care since he was born on August 12
They have previously said West violated the surrogacy contract, and they obtained a restraining order preventing her from seeing or holding the child.
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At an August 25 court hearing in Dallas, Gilkar even claimed West was trying to take their baby away.
‘He’s our child,’ Gilkar said, wiping away tears.
She explained at the court hearing how she went through eight failed rounds of In vitro fertilization and had to have a hysterectomy.
‘This was our only option,’ Gilkar said of her and her husband’s decision to seek a surrogate. ‘We’ve never wanted anything more than this baby.’
The court also saw the surrogacy agreement West signed where she agreed to allow the parents to terminate the pregnancy if there were ‘fetal abnormalities.’
By April, the surrogate mother learned the baby in her womb was diagnosed with hypoplastic left heart syndrome which he might not survive.
Yet West refused to get an amniocentesis test that would have told doctors definitively if the unborn baby was a candidate for the open-heart surgery that would be necessary to keep him alive, Gilkar and Ahmed’s lawyer argued.
Gilkar has since admitted she and her husband asked West to terminate the pregnancy due to the complications with the baby’s heart condition, but denied they ever refused or intended to refuse medical care to the child.
West, a mother of her own two biological children, is ultimately seeking final custody or conservatorship because she believes the couple will not provide the child with life-saving care, citing their request for an abortion at 23 weeks
Health complications then started the moment baby Rumi was born, requiring him to be resuscitated.
‘When they tried to give him medicine, the tube came out and he stopped breathing and chaplain was called,’ Gilkar sobbed. ‘He’s suffering a lot.’
Additionally, Rumi has undergone genetic testing, blood work and echo cardiogram as well as that two-day open heart procedure called the ‘Norwood.’
However, the surgery was delayed by days because West did not get the amniocentesis test while pregnant.
Due to his constant need for medical attention, the biological parents have only held Rumi for a handful of times since he was born.
‘He the most beautiful person I’ve ever seen. He’s the love of our lives,’ the biological mother said while still wearing her orange hospital bracelet.
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 Centers for Disease Control and Prevention.
It is unlikely the Supreme Court grants the appeal as the justices do not usually get involved in family disputes
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.
Yet West’s lawyers argued in the petition that ‘the stakes of the decisions… are enormous.’
‘In these extraordinary circumstances – where a life hangs in the balance – the Court should grant certiorari and summarily reverse to re-affirm the federal due process limits on state-court personal jurisdiction,’ they wrote.
Our News Outlet has reached out to Gilkar and Ahmed’s attorney for comment.
