Whose Baby Is It? Courts Must Decide if a Surrogate Mother Can Refuse an Abortion

An Alaska nurse who is more than 36 weeks pregnant is fighting in the courts of two states to secure heart surgery for the baby boy she is carrying, after the couple who hired her as a surrogate demanded a late-term abortion and sued her when she refused.McKenna West signed up last September as a gestational surrogate through Worldwide Surrogacy Specialists. She’s a working nurse, a single mother of two, and the extra money mattered. For four months, nothing seemed out of the ordinary. Then came the 20-week scan in April, and the doctor doing the anatomy check couldn’t find blood moving through the left side of the baby’s heart.A specialist diagnosed hypoplastic left heart syndrome, a congenital disability in which the left side of the heart never fully develops. The condition is serious, but it is not automatically fatal; the Children’s Hospital of Philadelphia describes a staged surgical approach that has become standard treatment for newborns with the defect, with outcomes improving enough that infants who survive the initial operation have a strong chance of reaching adulthood.That medical reality sits at the center of the dispute.Court filings say that shortly after the diagnosis, the intended parents, identified only as A.B. and C.D. and living in California, asked Ms. West to terminate the pregnancy under an “abortion on demand” clause written into her surrogacy contract. She scheduled an appointment at an out-of-state facility, since no doctor in Alaska would perform the procedure at nearly 22 weeks, as she was then. Court papers describe such a procedure as requiring a two-day dilation and evacuation.The anti-abortion advocacy group Live Action, whose news arm first reported Ms. West’s account and later helped connect her with resources to relocate to Texas, says Ms. West could not go through with the abortion and her brother stepped in to offer support, so she canceled the appointment.“No judge would enforce a contract clause that required a pregnant woman to have an abortion, and no self-respecting healthcare provider would perform an abortion on a woman who did not consent to the procedure,” the reproductive law and surrogacy attorney, Marla Neufeld, tells The New York Sun. “The surrogate is the patient, not the intended parents, and if she doesn’t want to have an abortion, the intended parents cannot force her to have one.”Contracts anticipate this scenario mostly in financial terms, not medical ones.“Typically, when a surrogate opts not to have an abortion that the intended parents want her to have, the contract language speaks about losing money, returning parts of the fee that have already been paid and forfeiting future payments, as well as making clear that the intended parents will no longer be the legal parents of the child once born,” a professor of law at Rutgers Law School, Kimberly Mutcherson, tells the Sun.The debate comes down to one question nobody in this case agrees on. When a contract, a diagnosis, and a due date all collide, who gets to determine what happens next? Is it the woman carrying the baby, or the couple who paid her to carry?The Contract Says Versus The LawWhen Ms. West would not comply, the couple pushed her to travel to Seattle for the procedure instead. Alaska court records show they warned her that refusing would leave her exposed to breach-of-contract damages of more than $250,000. Clauses like that are common across the surrogacy industry, yet there is a real limit to how far a court will actually enforce them.Ms. West instead proposed a series of compromises. She offered to take on full financial and custodial responsibility for the baby and release the couple from any further obligations; when that was rejected, she offered to give up her own parental claim if the couple would commit to pursuing the surgeries the baby would need after birth.Court papers say the couple rejected that offer too and have instead discussed palliative care that would let the infant die after birth.Attorneys for A.B. and C.D. have pushed back on that characterization, claiming Ms. West has distorted the medical picture and pointing to her refusal to undergo an amniocentesis that could have provided further diagnostic detail.In a filing objecting to the Alaska Department of Law’s involvement, the couple argues a California parentage judgment already makes them the baby’s legal parents, and that the surrogacy agreement was set up so custody and decision-making would pass to them the moment the child is born.Their position is that the attention paid to Ms. West’s bodily autonomy skips past a constitutional right of their own: the right of parents to direct their child’s care. In the filing, they accuse Ms. West and her legal team of using the state’s intervention to muscle in on decisions they say are theirs alone to make.A Fight Now Playing Out In Two StatesWith the relationship broken down, Ms. West left Alaska for Texas, seeking a hospital with a pediatric cardiac program equipped to treat newborns with her son’s condition. She has since filed for custody in an effort to guarantee the child’s access to care.The legal fight now spans two states. Ms. West’s case, McKenna West v. A.B., et al., sits in Alaska Superior Court under case number 3AN-26-07180 CI. The intended parents, meanwhile, have pushed their own parentage claim through California courts and asked the California Second District Court of Appeal to step in, arguing that a California parentage judgment already settled the question of who the legal parents are, and that the contract’s choice-of-law language shouldn’t get in the way of that.Ms. West’s attorneys have countered that the agreement explicitly states that Alaska law governs the arrangement.The Alaska Department of Law filed a statement of interest in the case, arguing that Ms. West’s constitutional right to bodily autonomy and privacy should carry weight in decisions over where and how she gives birth. On July 28, the Alaska Superior Court ceded jurisdiction over the birthplace question to California without adopting that argument, and A.B. and C.D. have sincemoved to strike the state’s filing altogether, calling it an intrusion into their rights as the child’s legal parents.Cases like this are becoming harder to avoid as commercial surrogacy expands across state lines with no single set of rules governing it.“There is no uniform national framework that surrogacy operates under, and often many states are involved in the process,” the executive director of the Center for Bioethics and Culture, Kallie Fell, tells the Sun. “In this case, the surrogate mother lives in Alaska, the intended parents reside in California, and she later relocated to Texas to seek specialized medical care for the baby. That uncertainty exists because commercial surrogacy routinely crosses state — and often international — boundaries without a consistent legal framework.”Ms. Fell maintains the imbalance goes beyond jurisdiction.“While they may not be specifically enforceable, these clauses can become powerful tools of coercion,” she tells the Sun. “I have had women before contact me in similar situations. Often they succumb to the intended parents’ wishes because they are fearful of being in breach of contract and having to pay, financially or otherwise.”The deeper problem, as Ms. Neufeld and Ms. Mutcherson describe it, isn’t any one clause. It’s that contracts get written months before a pregnancy even starts, long before anyone knows what a scan might turn up. Both point to the same fix: Give the surrogate her own lawyer, separate from lawyers for the intended parents’, before anyone signs anything, and require mental health screening that forces both sides to talk through worst-case diagnoses up front — not after an ultrasound has already upended the plan.Ms. Fell doubts that reform can fix what she sees as a fundamental flaw in paying women to carry children for others in the first place, arguing the practice should end rather than be regulated more tightly. None of the three, however, disputes that once a matter like this reaches a courtroom, the law’s task narrows considerably to determining who counts as a legal parent, not who was right.For Ms. West, the stakes are more immediate than any jurisdictional question. She is now in her final stretch of the pregnancy, with the baby due September 3, and her goal has not shifted since the diagnosis in April. If the intended parents agree to pursue surgery for their son, she has said she will not contest custody. Neither A.B. nor C.D. has been publicly identified, and attorneys for both sides have not responded to requests for comment on the latest ruling.Ms. Fell, for her part, says the case exposes a deeper problem with treating pregnancy as a matter of contract.“Pregnancy is not a commercial service that can be completely governed by contract,” she tells the Sun. “It is an inherently human relationship involving a woman, a developing child, and circumstances that no legal document can fully anticipate.”

Whose Baby Is It? Courts Must Decide if a Surrogate Mother Can Refuse an Abortion

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