(CNN) — In a Texas hospital this week, doctors performed a complex, high-risk, open-heart surgery on a 6-day-old boy born with hypoplastic left heart syndrome, a rare congenital condition that rendered part of his heart underdeveloped.
Omar Ahmed and Nausheen Gilkar waited in the hospital as the newborn, whom they named Rumi, underwent the first of three surgeries babies with the condition need very early in life, their lawyer told CNN.
When the California couple contracted last August via a surrogacy agency with McKenna West, a nurse from Alaska, to carry their child, few could have guessed the decision would land them in a Texas hospital room as a multistate, nationally publicized legal battle played out over who the baby’s rightful parents are.
Anti-abortion activists – who pointedly have bypassed the baby’s given name, calling him Gabriel – have seized on the case to bolster their arguments about fetal personhood, feeding a small but rising movement against surrogacy in the US. And as the newborn recuperates from surgery, the high-stakes legal battle centered around abortion, surrogacy and parental rights appears far from over.
How did we get here?
Surrogacy arrangements often include a contract. The one between Ahmed, Gilkar and West outlined stipulations, including a clause saying the intended parents could ask in writing to terminate the pregnancy if a doctor found a fetal abnormality – and West would honor their request, according to the agreement, which the couple attached to an August 10 court filing in Dallas County, Texas.
When a second trimester test revealed the baby had hypoplastic left heart syndrome, Ahmed and Gilkar decided to terminate the pregnancy and West agreed, the couple has claimed in state court documents in Alaska shared with CNN.
For babies born with the condition, three intensive surgeries can help the heart pump blood, but they are not a cure. While some live with lifelong complications, others need a full heart transplant that requires them to take medication for the rest of their lives, according to the Centers for Disease Control and Prevention.
“Upon learning this devastating news, A.B. and C.D. consulted with health care providers and researched the quality of life associated with this dire diagnosis to understand the future their child faced. After thoughtfully doing so, they made the agonizing and difficult decision to terminate the pregnancy,” the couple’s attorney said in a filing in Alaska.
“It is undisputed that West initially agreed and that she herself made the initial appointment,” the filing stated.
That’s where the intended parents and surrogate’s stories diverge.
West alleged Ahmed and Gilkar pressured her to have an abortion against her wishes and refused to commit to providing life-saving care for the baby, should it be born, according to court documents.
Ahmed and Gilkar say West cut off communication with them shortly after agreeing to terminate the pregnancy. Then, rather than pressuring West to have an abortion, they said they pivoted to arranging medical care for the baby in California, the documents state.
Meanwhile, a California court in May determined Ahmed and Gilkar to be the baby’s rightful parents, court records show.
“A.B. and C.D. have explicitly and unequivocally told the California court that they affirm and respect Respondent’s right to her own medical care, including her choice of whether or not to undergo a termination of pregnancy,” the Alaska court documents state.
“We are not asking you to terminate this pregnancy and we do not intend to ask you to terminate this pregnancy,” the parents said in a June 8 text message to West, their lawyer said in court filings.
Still, West flew to Texas, where a small army of anti-abortion activists and politicians had thrown their weight behind her.
The state’s Republican attorney general, Ken Paxton, intervened August 11 – a day before the baby’s birth – ordering two hospitals to provide life-sustaining care and requiring the baby, whom he called Gabriel, to stay in Texas while the case was pending.
Ahmed and Gilkar, who said they never intended to withhold life-saving care for their child after the decision was made to carry the baby to term, secured a temporary restraining order in Texas preventing West from seeing or holding the baby after its birth.
Paxton withdrew from the case Wednesday, as his office had “used every legal tool at our disposal to ensure baby Gabriel was able to receive the life-saving care he needed,” he said in a statement.
CNN reached out to West’s legal team after the infant’s surgery Monday. Through their lawyers, Ahmed, Gilkar and West declined to be interviewed or comment for this story.
Why did the surrogate go to Texas?
West went public with her perspective before the baby’s birth, and word of the surrogate mother who had refused to terminate her pregnancy spread like wildfire among anti-abortion groups.
Live Action, one such group based in Arlington, Virginia, paid to fly West, with her own two children, to Texas to seek medical care, the group’s founder, Lila Rose, told CNN. Rose also connected West with Alliance Defending Freedom, a conservative Christian legal organization now representing the surrogate, she said.
“We did what we could to help her because she was in a really desperate situation, and her little, you know, this little boy’s life was at risk,” Rose said. West had also done her own research about the treatment the baby would need after birth, Rose said, noting the top quality of medical care in Texas.
Choosing Texas also may have offered West a legal advantage in the fight over parental rights. Texas has one of the most restrictive abortion bans in the nation, with no exceptions for rape or incest.
Paxton, who is in the middle of a tight US Senate race, has fiercely enforced the state’s ban over the years. He soon framed West’s case as a crusade “to protect baby Gabriel’s life” – a move Ahmed and Gilkar’s lawyer said amounts to “political theater.”
The push aligned with a broader notion central to the anti-abortion agenda: fetal personhood, which holds an unborn fetus should have the same rights and legal protections as a person.
West’s case also dovetailed with an anti-surrogacy campaign recently undertaken by some conservatives, Mary Ziegler, a law professor at the University of California, Davis who specializes in reproductive health, told CNN. Such opponents broadly claim surrogacy treats a fetus as a product rather than a person.
In Texas, lawmakers have been exploring a ban on foreign nationals using Texas surrogates – a move surrogacy experts worry could be the first step toward a statewide ban on the practice. And Republican Gov. Ron DeSantis of Florida this year signed a law limiting surrogacy contracts with residents of certain “foreign countries of concern.”
Live Action opposes the practice of surrogacy at large, Rose said, pointing to West’s case as an example of its dangers.
“What we’re seeing right here,” she said, “is a case in point of the dangers and the harm of surrogacy: Children are treated as commodities.”
How do surrogacy agreements typically work?
Surrogacy agreements are most often private, and there are few federal standards guiding the practice, Ziegler said. Varying state laws have left a lot of gray area and open questions about how disputes between intended parents and surrogates should be handled.
“There’s data on what surrogacy contracts say, but there’s a lot less information about how the disputes actually break down because most of them don’t actually go to litigation like this,” she said. “They’re settled privately.”
While there’s no boilerplate language for surrogacy agreements, it’s fairly common for them to include pregnancy termination clauses, Ziegler said. No matter what is included in an agreement, it’s highly unlikely any court would ever order a surrogate to have an abortion against her wishes, she noted.
“That’s just not on the table,” Ziegler said.
It’s possible legal action could be pursued against a person who breaks a surrogacy contract, but again, data about such cases is scarce, she added.
Courts have often “given the edge” to intended parents, Ziegler said, adding it is not likely any court will rule Ahmed and Gilkar are not the infant’s rightful parents.
The surrogacy agency the couple used, Worldwide Surrogacy, abides by the ethical standards and screening recommendations set by the Academy of Adoption and Assisted Reproduction Attorneys, the American Society for Reproductive Medicine and the Society for Ethics in Egg Donation and Surrogacy, the agency’s owner, Victoria Ferrara, told CNN in a statement.
“The team at Worldwide Surrogacy supports and has always supported the right of a gestational carrier to make medical decisions for herself, and for her to have complete bodily autonomy. The team also supports the right of the intended parents to legal parentage of their baby upon the birth of the baby,” Ferrara said. “The team is saddened by the turn to litigation in this matter and is especially hopeful that the infant is surrounded by love and good medical care at this time of hardship in his life.”
What’s next for the baby?
When doctors on Friday determined Rumi was eligible for the first surgery related to his heart syndrome, dubbed the Norwood procedure, Ahmed and Gilkar “immediately provided consent for the surgery to occur at the hospital’s earliest availability,” and the baby was taken to the operating room Monday morning, the couple’s attorney, Lee Budner, said in a statement.
“Rumi is now recuperating under the loving care of his parents and his heroic team of doctors, nurses, and medical staff,” it read. “His condition remains critical and complex, and his family seeks privacy in caring for their son on his long road to recovery.”
This was the last update on the baby’s health the family intended to share, Budner said.
“Meanwhile, Ms. West continues to assert baseless claims for custody of Rumi, in violation of multiple courts orders out of both Alaska and California. We look forward to quickly defeating those claims as Rumi’s parents continue to focus on his health and safety above all else,” Budner added.
West, meanwhile, suggested the legal battle may not be over just yet.
“My focus has always been on protecting this precious baby’s life. It was great to hear that he received the first of the three necessary surgeries yesterday,” the surrogate said in a statement released Tuesday through her Alliance Defending Freedom legal team.
“What matters most now is making sure he gets the life-saving care he will need in the coming months, care that the other side is currently fighting in court for their ability to withhold,” West said. “My focus therefore remains on protecting his life.”
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