Baby Gabriel/Rumi is just over a week old but is already at the center of a multistate custody dispute between the surrogate who gave birth to him and the California couple who created the embryo through IVF.
McKenna West, a 28-year-old Black nurse from Alaska, signed a gestational-surrogacy agreement last year with Omar Ahmed and Nausheen Gilkar, a married couple from California.
The agreement required West to carry the pregnancy and relinquish the child after birth. It also stated that “there shall be a termination of the pregnancy for a fetal abnormality.”
At about 20 weeks, doctors diagnosed the fetus with hypoplastic left heart syndrome, a severe condition in which the left side of the heart does not develop normally and can be fatal soon after birth without treatment.
Ahmed and Gilkar asked West to terminate the pregnancy. West initially agreed but later changed her mind, filed suit in Alaska on June 24, and traveled to Texas, where abortion is illegal. On Aug. 11, Texas Attorney General Ken Paxton obtained an emergency order requiring the baby to remain in Texas for medical care.
West gave birth on Aug. 12, named the baby Gabriel, and is seeking custody. Ahmed and Gilkar, who call him Rumi, have countersued, arguing that they should receive custody.
‘Still Her Body and Her Ultimate Decision’
“At the end of the day, it’s still the intended parents’ biological child, so they should retain the right to make decisions for this child because they didn’t terminate,” said Shadina Blunt, CEO and founder of Georgia-based, Black-owned Surrogacy Miracles & Consulting.
“But ultimately, it should be left to them. And if they decide to withdraw their rights, then if the surrogate wants to step up, it should fall on her.”
Blunt, who has operated her business since 2019, said that although the California couple should receive custody, she does not believe they could legally force West to have an abortion, despite the language in the initial contract.
“It’s still her body and her ultimate decision,” Blunt said.
“So if she were to go to the hospital and the family says, ‘Well, this contract says you’ll get an abortion,’ there is still nothing that can make her have to get the abortion,” Blunt said.
“It just proves you are in breach of the contract.”
Blunt said her agency works only with “surrogacy-friendly states” to avoid situations like this.
“This is one of the biggest fears that parents have: that surrogates are going to go rogue in this way and just make decisions on their own,” Blunt continued.
Three-State Legal Dispute
A California trial court ruled that Ahmed and Gilkar are Gabriel’s legal parents. A California appeals court declined West’s request to pause that ruling while she challenges it.
Ahmed and Gilkar argue that West violated the gestational-surrogacy agreement and has no legal or physical custody rights.
West has filed a competing claim in Texas, where she gave birth. She argues that Texas law should govern Gabriel’s protection, parentage and medical care.
The parties will return to Dallas County court on Aug. 25. The judge is expected to decide whether to keep temporary restrictions on West in place while the court considers custody, parentage, jurisdiction and the surrogacy contract.
Lee Budner, an attorney for Ahmed and Gilkar, accused Paxton and West of engaging in “political theater.”
“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, are able to spend every precious moment they can with him,” Budner told the Texas Tribune.
After Paxton secured an emergency court order requiring hospitals to provide the baby with life-sustaining medical care and preventing anyone from removing him from Texas, a separate Texas court order barred West from making medical decisions for Gabriel or presenting herself as his parent or guardian.
Ahmed and Gilkar received access to the baby while the case moves forward, according to their attorney.
“No woman should be forced to kill the baby she is carrying, and every child deserves a chance at life,” Erik Baptist, an Alliance Defending Freedom lawyer representing West, said in a statement.
“We are thrilled that the court’s order calls for Baby Gabriel to receive the surgery necessary to save his life.”
The Surrogacy Agreement
The agreement said West would receive $60,000 for carrying the pregnancy, though public records do not show how much she has received.
“Intended Parents agree to accept custody and assume sole financial and legal responsibility for the Child, immediately upon the Child’s birth regardless of the Child’s physical, mental, genetic and/or congenital abnormalities or defects,” the agreement states.
The courts have not resolved the core question: Does the California surrogacy agreement control the dispute, or does Texas law give West a separate claim to parental rights because she gave birth there?
