Supreme Court stays out of custody dispute between California couple and surrogate

Washington —  The Supreme Court on Tuesday declined to intervene in a custody dispute between a California couple and surrogate who gave birth to a child last month with a rare and serious heart defect.

Justice Elena Kagan rejected the emergency appeal from the woman, McKenna West, who had asked the justices to halt a California court order declaring the couple, Omar Ahmed and Nausheen Gilkar, to be the child's parents.

Kagan handles emergency appeals arising from California and other states in the region.

The legal battle involves a surrogacy contract Gilkar and Ahmed entered into with West, which allowed the couple to demand an abortion for a baby diagnosed with a fetal abnormality, according to court filings.

West, who lives in Alaska, became pregnant with a baby boy in December. But in April, a 20-week anatomy scan showed the baby had hypoplastic left heart syndrome, a severe, life-threatening heart defect that prevents normal blood flow through the heart, according to the U.S. Centers for Disease Control and Prevention.

After receiving the diagnosis, Gilkar and Ahmed requested West obtain an abortion, according to court filings. West refused and traveled to Texas, where she gave birth last month. She calls the baby Gabriel, and Gilkar and Ahmed named him Rumi. Texas bans abortions after roughly six weeks of pregnancy.

Before the baby was born, the California couple asked a state court to confirm their parentage of the child. The California court agreed, recognizing Gilkar and Ahmed as his legal parents. 

The child underwent surgery in Texas soon after he was born after Texas Attorney General Ken Paxton intervened and secured a court order requiring the hospital to provide the baby with lifesaving medical care. Paxton has since withdrawn from the proceedings. That surgery, known as a Norwood procedure, is typically the first in a line of three surgeries required in the first years of life for babies born with hypoplastic left heart syndrome, according to the CDC. 

The Texas court also said the California couple, not West, is responsible for medical decisions for the boy.

But West asked the Supreme Court to lift the California order that recognizes Gilkar and Ahmed as the baby boy's parents. In a filing, her lawyers claimed that the couple is attempting to halt lifesaving care for the child and warned that without relief, West will be denied the right to protect the baby's life.

They wrote that under Texas law, West would likely be the child's rightful mother since she gave birth to him in Texas.

But lawyers for Ahmed and Gilkar said in a Supreme Court filing that they have been ensuring the baby receives lifesaving care and "are committed to doing so  for the rest of his life."

"Respondents have been with their child around the clock in a hospital's pediatric intensive care unit," they said. "The child has been receiving critical medical care by his team of doctors at the consent and direction of Respondents."

They said that intervention from the Supreme Court would cause chaos and confusion over medical decision-making for the baby, and rebutted West's need for emergency relief since Ahmed and Gilkar are providing the child with the medical care that she is pushing for.