Texas Supreme Court Rules Against McKenna West, Says Baby Can Leave State

The Texas Supreme Court on Monday rejected surrogate McKenna West’s request to keep the surrogate child she gave birth to in Texas, allowing Baby Gabriel’s biological parents to take him to California for further heart treatment.

The one-month-old boy, named Rumi by his biological parents, Nausheen Gilkar and Omar Ahmed, was born August 12 in Dallas through surrogacy. Doctors diagnosed him in April, while he was still in the womb, with an underdeveloped heart that prevents normal blood flow.

He has been treated at Children’s Hospital in Dallas, has already undergone one surgery, and is expected to need more.

West, who lives in Alaska, came to Texas after the birth and sought sole conservatorship so she could control medical decisions. She accused the parents of pressuring her to kill Gabriel in an abortion after the heart defect was discovered.

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News accounts of the court fight say the couple considered asking West to end the pregnancy after the diagnosis but now say they are committed to the child’s care. Their lawyers said hospice is not part of his medical plan.

The Texas Supreme Court ruled for the parents today.

“Sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter,” the court said. It pointed to testimony from the child’s Texas physician that an ICU-to-ICU transfer to a Los Angeles hospital was in the child’s best interest to preserve his life as long as possible.

The doctor warned that delaying the transfer would create “much more complicated treatment.”

Guardian ad litem Susan Duesler recommended moving the baby to Los Angeles for the remaining surgeries.

Lawyers for the parents said Duesler testified that they “have followed the recommendations of the doctors to a T” and that the doctors have “unequivocally, no” concerns about their medical decision-making.

Gilkar and Ahmed, who live in the Los Angeles area, turned to surrogacy after Gilkar had eight unsuccessful rounds of in vitro fertilization and a hysterectomy. They have won related custody fights in California, Alaska and Texas. The Dallas trial-court case has been sealed.

Attorney Lee Budner, representing the parents, said, “While McKenna West has been conducting a publicity tour, Rumi’s parents have been quietly caring for their child and following the recommendations of Rumi’s medical team.”

West has asked the U.S. Supreme Court to step in.

She told the surrogacy agency she could not abort “this precious baby” after feeling him move and learning treatment was available, according to the Supreme Court filing. She offered to raise the child herself or arrange an adoption if the couple no longer wanted him, and to release them from further financial obligations.

Her attorneys say she was then warned that not killing the baby could expose her to more than $250,000 in penalties. After she refused, the couple cut off payments and later sued her for more than $100,000 for delivering the baby rather than aborting him.

“The threats eventually became real,” West wrote. “But no threat or amount of money could sway my conviction that this baby had a real chance at a full life, and I could not participate in killing him and depriving him of that opportunity.”

In a Dallas courtroom in August, West described the abortion she would not undergo.

“It would have been a two-day procedure…they would have injected his heart with a solution that would stop it,” she said through tears. She said the child’s body would have been removed two days later. “It was terrifying.”

“I knew that I wanted to protect him and I knew he deserved to be protected,” she testified. “I knew that he deserved to be protected and that he deserved a chance.”

West, a mother of two, has said the baby “had a great shot at survival if given the opportunity to receive the necessary treatment.” As a cardiac nurse, she has described the standard repair as three staged surgeries beginning with the Norwood procedure, treatment she said “gives children a high chance of going on to live full lives.”

“No woman should be forced to kill the baby inside her. Most importantly, every child deserves a chance to live,” she wrote.

Texas Attorney General Ken Paxton obtained an emergency order before the birth directing the hospital to provide life-saving care and barring the child from being taken out of the state. The baby underwent the Norwood procedure on Aug. 17, the first of three expected open-heart operations. His condition later declined and he was returned to a breathing tube.

As that has happened, he is no longer involved in the case.