Surrogate Custody Battle Heads To Supreme Court  [Op-Ed]

Let’s be clear about something: a surrogate is not a mother. She is a woman who, for compensation, agrees to carry a pregnancy to term and then hand the child over to the people who intended, planned for, and are legally recognized as its parents. That is the entire premise of the arrangement, and it’s the premise McKenna West signed onto — including, by her own attorneys’ account, a clause addressing what happens if a serious fetal abnormality is diagnosed. 

When West disagreed with what that clause required, she didn’t go back to court to litigate the contract. As previously reported by NewsOne, she fled to Texas and delivered the baby on her own terms—Texas, a state she fled to specifically because its abortion laws would let the pregnancy continue—then asked a judge to give her a say in his medical care she was never entitled to in the first place.

McKenna West is a Black nurse from Alaska who served as surrogate for Nausheen Gilkar and Omar Ahmed, a Los Angeles couple of color, who has taken her fight over the baby all the way to the Supreme Court. 

West’s emergency appeal asks Justice Elena Kagan to block a Los Angeles court ruling that handed Gilkar and Ahmed full legal and medical authority over the infant she gave birth to on Aug. 12. 

Quick recap for those just tuning in: the baby was diagnosed at 20 weeks with hypoplastic left heart syndrome, a serious but treatable condition. West says the couple pressured her to abort the pregnancy under a clause in their surrogacy contract covering fetal abnormalities. She refused, and what followed was months of a custody battle that started before the baby even had a name he could agree on — she calls him Gabriel, they call him Rumi.

Clearly, this is not a simple pro-life-versus-pro-choice morality play, though plenty of parties are trying to flatten it into one. This is a case where a Black woman’s body, labor, and judgment are being fought over by two people of color who are themselves navigating a legal and medical system that has never been particularly gentle with either of their communities. 

As previously covered by NewsOne, this custody battle started almost as soon as the baby was born, and it’s only escalated since. Nobody in this story is a stock villain. And yet the case has become a magnet for people who want to use it as a cudgel in the larger abortion fight — conservative outlets have all but canonized West as a pro-life martyr, while MSNBC’s reporting complicates that tidy narrative, raising deeper questions about who surrogacy law is actually built to protect when things go sideways — the carrier, the intended parents, or, allegedly, the baby caught between both their lawyers.

Now that the baby’s here and, by his mother’s own tearful courtroom testimony, his condition has only gotten worse, as previously reported by NewsOne, when Gilkar described her son gasping for air and needing a blood transfusion after surgery — West’s petition to the high court claims she’s “completely excluded” from decisions about his care, and warns that without intervention, he could be moved from a Texas hospital to hospice in California by Sept. 17. 

Hospice, mind you, for a condition doctors call treatable. The BBC’s coverage frames it plainly as what it is: a jurisdictional mess spanning three states, now escalated to the nation’s highest court because the lower courts couldn’t settle it.

Here’s my question, and it’s not a legal one: where is the urgency for the baby in all of this? Although the baby was assigned his own lawyer, it seems as if the parents (whomever you deem the parents to be) are having their say only. 

Gilkar has testified in tears that her son is “the love of our lives.” West says she’d drop every claim tomorrow if she believed the couple was fully committed to his care. In her mind, once they asked her to abort, his biological parents gave up their claim on him. 

Two people who supposedly both want this child to live are now arguing their case before Elena Kagan instead of at his bedside — while outside forces try to make his tiny, struggling heart stand in for their fight over everybody else’s body.

Contracts exist to protect everyone involved, including the child who has no say in any of it. Gilkar and Ahmed held up their end. It’s time the courts made sure a signature actually means something — and gave this baby back to the parents who were always his.

Or will the Supreme Court be used to further restrict legal abortion in the country? 

We shall see. 

SEE ALSO:

Surrogate Gives Birth To Baby Biological Parents Wanted Aborted

Baby Born In Surrogate Dispute Is Now The Subject Of A Custody Battle

Surrogate Continues Custody Fight As Baby’s Condition Worsens [Op-Ed]