An Alaska nurse who refused to abort the baby she carried for a California couple has asked the U.S. Supreme Court to temporarily block a ruling that declared the couple the child’s legal parents, a step her lawyers say could put her back in the fight over the critically ill newborn she calls Gabriel.
Attorneys for McKenna West filed an emergency application Wednesday asking Justice Elena Kagan to halt the Los Angeles parentage order.
Kagan handles emergency matters from the 9th Circuit, which includes California. She has not ruled.
West’s lawyers say the judgment has left the 28-year-old cardiac nurse with no right to information about the baby and no standing to defend an order requiring his continued treatment. They say a later victory could come too late.
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“Unless this Court provides relief from that judgment, M.W. will have no access to information about Baby G.’s condition,” the filing states. “Relief later in Texas proceedings may only restore her right to protect a child that has already passed.”
The application does not ask the justices to decide who the baby’s legal parents are or to order a particular course of medical care. Counsel said a temporary block could allow West to ask a Texas court to restore her to the case after a judge removed her on Sept. 2.
West carried the child under a surrogacy contract with Nausheen Gilkar and Omar Ahmed of California, who call the boy Rumi. The couple agreed to pay her $60,000.
The contract included a clause allowing abortion for “fetal abnormalities.” A 20-week ultrasound found hypoplastic left heart syndrome, a rare defect in which the left side of the heart is severely underdeveloped.
Gilkar testified that she and her husband asked in May that West kill the baby in an abortion. West refused.
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.
She left Alaska for Texas, where abortion is banned and the woman who gives birth is recognized as the mother.
Gabriel was born Aug. 12 in Dallas and had to be resuscitated. West has said she had only about a minute with him, while the umbilical cord was still attached, before he was taken from her. A court order later barred her from seeing or holding him.
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.
Gilkar and Ahmed appeared in the Dallas court in late August and accused West of trying to take the child.
Gilkar, who said she turned to surrogacy after eight failed rounds of IVF and a hysterectomy, broke down on the stand.
“He’s our child,” she said. “She’s trying to take him from us.”
She denied that the couple refused, or intended to refuse, medical care after birth. They had agreed to the first surgery and said they would approve life-saving care if doctors determined he was a candidate.
Their lawyers argued West was only a “carrier,” that she moved to Texas without permission and that she refused an amniocentesis they said delayed surgery.
Attorney Lee Budner called West’s parentage claims “baseless” and said the infant was “recuperating under the loving care of his parents and his heroic team of doctors, nurses, and medical staff.”
West has said the fight is not about taking the child and that she would drop her claim if a court found the couple committed to life-saving care.
“I’m not fighting to try to take someone else’s baby,” she wrote. “I’m fighting because this baby boy needs someone willing to advocate for and fight alongside him as he gets the ongoing treatment his fragile heart requires.”
“This is about giving an innocent child a shot at the life he deserves.”
“Every life matters,” West wrote. “No woman should be forced to end the life of the baby she is carrying — including me … Baby Gabriel should receive a chance at life.”
