Supreme Court Denies Appeal From Surrogate Over Custody of Son

Supreme Court Justice Elena Kagan on Sept. 22 denied an emergency appeal from a surrogate who has been trying to gain custody of the child she gave birth to.

Kagan did not explain her decision to deny the appeal from McKenna West, an Alaskan woman who served as a surrogate for a California couple.

West gave birth to a boy in August in Dallas, Texas. A California court granted custody to the biological parents of the child, Nausheen Gilkar and Omar Ahmed, who had asked West to abort the child after learning he had a heart problem described as serious but treatable.

In an emergency filing to the Supreme Court, lawyers for West said that the California court ruling was erroneous and that West should have custody of the child, in part to decide on his medical care.

“Ordinarily, [West] would have been deemed Baby G.’s mother under Texas law by virtue of giving birth to him,” the filing said. “But because of the unlawful California judgment, she has been dismissed with prejudice from the Texas proceedings and denied any information about or control over the medically fragile child.”

The lawyers said that without a stay, the child’s parents could take the baby to California without having him treated, which could lead to the baby dying.

Attorneys for the parents told the court in response that the Supreme Court had no jurisdiction over the matter. They also said there is no emergency because the parents “have been ensuring their child receives the life-saving care he needs—and they are committed to doing so for the rest of his life.”

The child has been called Gabriel by West and Rumi by the parents.

“We are truly grateful that Rumi can continue receiving the treatment he needs to survive, and that he will not be stripped away from what has been described by doctors as the excellent care of his parents,” Adam Wolf, an attorney for Gilkar and Ahmed, told news outlets in a statement. “Ms. West’s legal filings across three jurisdictions, state courts of appeals, and now the U.S. Supreme Court have sought to undermine Rumi’s parents’ right to provide him with the care he needs. Those efforts have been rejected by every single court.”

An attorney for West said in a statement to outlets: “While disappointed at the Supreme Court’s ruling, McKenna takes great comfort in how these legal proceedings have prompted the contracting parents to say they are committed to provide the baby with the lifesaving care he needs. That’s what McKenna has been fighting for from day one.”