The U.S. Supreme Court on Tuesday declined to step into a custody fight over a baby boy born in Dallas last month with a rare heart defect, leaving in place a California order that names the intended parents as his legal parents.
Justice Elena Kagan rejected an emergency appeal from surrogate McKenna West without explanation, CBS News Texas reported. Kagan handles emergency matters from California. West, who lives in Alaska, had asked the justices to freeze the California parentage order and let her keep a say in the child’s care.
The boy was born Aug. 12 in Dallas. West calls him Gabriel. California couple Nausheen Gilkar and Omar Ahmed, whose embryo she carried, named him Rumi. A 20-week scan found hypoplastic left heart syndrome, a life-threatening defect that blocks normal blood flow. Their surrogacy contract allowed the couple to request an abortion for a fetal abnormality. They asked West to end the pregnancy. She refused and traveled to Texas, where abortion is banned after about six weeks.
Texas Attorney General Ken Paxton intervened after the birth and obtained an order requiring the hospital to provide lifesaving care. The baby underwent a Norwood procedure, typically the first of three operations. Paxton later withdrew. A Dallas court said the California couple, not West, would make medical decisions. Last week that court lifted travel limits, clearing a path for the parents to take the child to California.
West’s lawyers argued she would likely be recognized as the mother under Texas law because she gave birth here, and they warned the couple might halt care. Gilkar and Ahmed’s attorneys said they have been at the hospital around the clock and are committed to treatment. Their lawyer, Adam Wolf, said after Kagan’s denial that every court has rejected efforts to strip the parents of the right to provide that care.
West is represented by Alliance Defending Freedom. Her lawyer said she is disappointed but takes comfort that the parents now say they will provide lifesaving care. The couple has denied claims they would withhold treatment.
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