Parental Laws of Three States Clash in Dispute Over Ailing Baby Born to Surrogate

The arrival of a baby boy born Wednesday at a Dallas hospital has touched off a new legal fight in a surrogacy dispute that has spanned three states, drawn in the Texas attorney general, and left the surrogate who carried him, McKenna West, barred by a judge from making any decisions about his care.Ms. West, an Alaska nurse who is a single mother of two, had spent the final weeks of her pregnancy fighting to secure heart surgery for the baby after she says the couple who hired her as a gestational surrogate, identified in court papers as Nausheen Gilkar and Omar Ahmed of California, pushed her to terminate the pregnancy once doctors diagnosed hypoplastic left heart syndrome at 20 weeks.Ms. Gilkar and Mr. Ahmed say that isn’t what happened. Their attorneys wrote in court filings that Ms. West made the termination appointment herself and only backed out later. The dispute didn’t end with the birth. It has instead moved to a hospital ward, with doctors, lawyers, and the state of Texas all now weighing in on what happens to the baby next.Paxton Steps InA day before the delivery, Texas’s attorney general, Ken Paxton, announced that his office was intervening in the case, alleging Ms. Gilkar and Mr. Ahmed had refused to commit to permitting the newborn’s first heart surgery and might try to move him out of Texas before doctors could operate.In a court filing, the attorney general’s office framed the dispute directly, arguing the question before the court was not whether the surrogacy contract could be enforced but whether “any adult, whatever parental title he or she holds, may decline life-saving surgery for a newborn who can live, because the child will live with disabilities.”A Dallas judge granted Mr. Paxton’s request the same day, ordering that the baby receive lifesaving treatment upon birth and that he remain in Texas. The order also appointed a guardian ad litem, or for the proceedings, to represent the infant. It directed the hospital to notify the court of any refusal of treatment, which would trigger an emergency hearing.“The intended parents will likely be recognized as the legal parents after the child is born,” the executive director of the Center for Bioethics and Culture, Kallie Fell, told The New York Sun just prior to the baby’s birth.Children born with hypoplastic left heart syndrome, a defect in which the left side of the heart fails to develop fully, typically require three separate operations, according to the Cleveland Clinic. The first occurs within two weeks of birth with the following two spaced out through early childhood.The condition carries lifelong risks; however, survival rates have improved enough that many children who make it through the initial surgery reach adulthood.Two Versions of the Same PregnancyMs. West traveled to Texas after leaving Alaska where she is from, seeking a hospital with a pediatric cardiac program. She had asked a Dallas court to recognize her right as the birth mother to weigh in on the baby’s treatment. That request was rejected. In a separate order issued the same day as Mr. Paxton’s intervention, the judge sided with Ms. Gilkar and Mr. Ahmed, barring Ms. West from making medical decisions for the child or presenting herself as his mother.Ms. West’s attorney, Lincoln Wilson, stated that she does not have access to the baby and that her relationship with the couple broke down only after they pushed her toward the abortion.“She described it as fear because basically she was going to be asked to do something to the child that she carried that was fundamentally offensive to her and she couldn’t imagine ending the life of the child that she carried inside her,” Mr. Wilson told the Texas Tribune.Attorneys for Ms. Gilkar and Mr. Ahmed have offered a different take on the situation. In an Alaska court filing, the couple’s lawyers wrote that after “heartbreaking consultations with medical providers,” the couple decided to end the pregnancy and that Ms. West “initially agreed and that she herself made the initial appointment” before severing contact and revoking the medical releases that let the couple speak with her doctors.The filing said Ms. West refused additional prenatal testing that doctors wanted to plan for surgery after birth and accused her of endangering the baby by unilaterally deciding to deliver in Texas rather than California, where the couple’s chosen specialists practice.The couple’s attorney, Lee Budner, said in a statement to the Texas Tribune that the pair are with their son and that Ms. West’s “baseless attempts to intervene in the child’s medical care have been soundly rejected by the courts.” He accused Ms. West and Mr. Paxton of turning “a family tragedy into political theater.”A California trial court had already ruled before the birth that Ms. Gilkar and Mr. Ahmed are the child’s legal parents. An appeals court declined to block that ruling from taking effect. Ms. West is relying instead on Texas law, which recognizes whoever gives birth in the state as the child’s legal mother, a claim her attorney maintains despite the competing California judgment.“Medical providers have very specific legal and ethical obligations to the person who is their patient,” a professor of law at Rutgers Law School, Kimberly Mutcherson, told the Sun. “This is not to say that there aren’t ethically complex issues that arise during a surrogacy, especially when there are questions about medical interventions that might benefit the fetus.”A Name and a Date Still in DisputeThe two sides cannot even agree on a name for the baby. Mr. Paxton’s office and Ms. West have referred to him as Gabriel; Ms. Gilkar and Mr. Ahmed say that is not his name, without offering an alternative publicly.The agency that matched the parties, Worldwide Surrogacy Specialists, said in a statement to CBS News that the case should have gone to mediation rather than the courts, so that “upon his birth, the child would be surrounded by love, not lawyers and litigation.”A hearing in the case is scheduled for August 25, though it remains unclear whether the birth, or the impending surgery, will move that date up. For now, the baby is receiving care from a team of pediatric specialists at Dallas, caught between a courtroom in Texas, a judgment in California, and parents on both sides of the surrogacy contract who say they only want what is best for him.“Our clients’ only focus at this time is ensuring that their baby receives the medical care that he vitally needs and that they, as his parents, can spend every precious moment they can with him,” Mr. Budner said.

Parental Laws of Three States Clash in Dispute Over Ailing Baby Born to Surrogate

Parental Laws of Three States Clash in Dispute Over Ailing Baby Born to Surrogate

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