On April 17, Nausheen Gilkar and Omar Ahmed learned some of the worst news that can be given to expecting parents. Their son, who they had chosen to name Rumi, had hypoplastic left heart syndrome, a severe defect which prevents normal development of the heart and would — should he survive birth — require multiple high risk surgeries to repair.
The California couple made the gut wrenching decision to terminate the pregnancy at 23 weeks. In ordinary circumstances, the choice would have been their own, but Rumi was being carried by a surrogate.
After years of infertility struggles and an eventual hysterectomy, Gilkar and Ahmed contracted Alaska nurse McKenna West, a single mother of two children, to carry their pregnancy. They are the biological parents, and the surrogacy contract included a clause that would require West to terminate the pregnancy at the request of the couple, a common clause in such agreements. When it became clear West did not wish to abort, the couple claims that they began seeking to establish treatment options and post-natal care for the infant in California, but were cut off from contact by West.
“There is a misconception advanced by Ms. West and the State, that regardless of the circumstances, we intend to refuse surgery for our child,” Ahmed wrote in court filings previously obtained by The Dallas Morning News. “That is not and has never been our position.”
She fled from Alaska to Texas — a state with one of the strictest anti-abortion laws in the country — claiming her brother had offered to adopt the then unborn child. Attorneys for the couple and for West did not respond to requests for comment from Rolling Stone. An attorney for the couple previously told CBS that they could not be sharing additional updates on Rumi’s health. “His condition remains critical and complex, and his family seeks privacy in caring for their son on his long road to recovery,” they said.
In an op-ed written for The New York Post, West acknowledged that the “contracting couple wanted me to deliver the baby at a hospital in California,” but claimed that she chose to go to Texas because the Dallas area hospital where she ultimately delivered had “perfect” track record treating infants with hypoplastic left heart syndrome.
There, West quickly availed herself of the support of conservative Christian groups and state lawmakers to sue Gilkar and Ahmed for custody of Rumi, who was born on Aug. 12 and is reportedly in critical condition. While the couple currently have custody of their son, West is seeking to strip them of their parental rights, and her actions have plunged the family into a hellish legal ordeal that could further reshape reproductive rights, and the laws governing the growing fertility technology industry.
Surrogacy practices “have been spaces that, over time, have not been regulated by the federal government,” Michele Goodwin, professor of Constitutional Law and Global Health Policy at Georgetown University Law Center, tells Rolling Stone. “In some ways, assisted reproductive technologies is exactly what conservatives would want: very limited regulation, and where the marketplace has basically figured it out on its own.”
As Goodwin explains it, much of the contract law surrounding surrogacy agreements rests on the participating parties’ good faith approach to seeing the conception, pregnancy, birth, and transfer of the child to the intended parents. Different types of surrogacy — egg donor vs. gestational — come with different legal considerations and ethical complications. Different states have different laws governing the validity and execution of surrogacy contracts, and the establishment of parental rights.
The collision of genetics, bodily rights, legal structures, and finances surrounding a surrogate can become extremely fraught. “With any kind of marketplace, you have individuals who come into those spaces that are looking to exact out of it exactly what it is that they want,” Goodwin adds. “This makes it really precarious when we’re talking about the creation of families.” That tension is now playing out in a Texas courtroom.
A Dallas area judge held a hearing last Tuesday to consider arguments regarding a restraining order barring West from interacting with the infant — whom she refers to as Gabriel — or publicly claiming parentage. West is suing the couple for parental custody of the infant, alleging the biological parents are unfit giving their past desire for an abortion, and accusing them of being unwilling to provide “life saving care” to the child.
“She’s unstable,” Gilkar told the judge of West, in the biological mother’s first public statements related to the case. “She’s making us run from doctor to doctor, state to state with our baby. She’s trying to take him.” Gilkar testified that she and her husband never refused to care for the infant after birth, and that she and her husband had enthusiastically agreed to have open heart surgery performed on Rumi once they learned he was eligible.
Gilkar, who was present in the moments after the birth, testified that immediately after delivery Rumi was intubated, briefly stopped breathing, and that nurses called for a chaplain. When they were told that they could either consent to emergency surgery, or pursue palliative care, they opted for the procedure. It has not fully corrected the problem, and the infant will likely require additional surgeries should he survive. Gilkar noted that he had been observed choking and gasping since the surgery. “He’s the love of our lives,” she said. “He’s suffering a lot.”
Gilkar told the court that she did not regret her initial desire for the pregnancy to be terminated.
To make matters even more complicated, Texas Attorney General Ken Paxton, the current Republican nominee for a seat in the Senate, threw himself into the fray. In August, Paxton issued an emergency order barring the couple from removing their son from the hospital where he was born.
“Baby Gabriel deserves a chance at life, and I will not allow anyone to unlawfully deny him medically necessary care,” Paxton wrote in a letter to the hospital, using the surrogate’s — rather than the parents’ — name for the son. To be clear, no one has denied the child any sort of medical care. The state has since filed a notice that they will not pursue a separate suit against the couple, and did not respond to questions from Rolling Stone regarding any future intent to intervene in the ongoing custody dispute.
In some ways, West’s flight to Texas was also less about medical freedom than it was about giving birth in a state where paternity laws favored her claim. As Goodwin explains it, there’s a longstanding precedent guarding an individual’s right to refuse a medical procedure. It is extremely unlikely that a court in any state would have compelled West to forcibly undergo a pregnancy termination, regardless of the contract. In Texas, the law defaults to the assumption that the woman who physically births a child is the legal mother. There is also a history of states attempting to strip pregnant women or mothers — predominantly non-white ones — of parental rights for supposed misconduct during a pregnancy. This includes the very thought of a termination, even though it’s not at all unusual for couples to debate the decision to get an abortion in the first place.
The rapid criminalization of abortion resources in different states is opening the door to treating the steps or considerations a woman might take around an abortion as potential criminal premeditation. This includes the invocation of murder charges against women accused of terminating their pregnancies.
“The reality is in the post Roe, post Dobbs world, depending upon state, depending upon local prosecutors, the fact that an abortion has even been considered has been enough for some D.A.’s to say, ‘Well, we need to intervene,’” Goodwin adds.
“If [Gilkar and Ahmed] are deemed the intended parents, and then the [custodial] parents, could then the child be taken away from them, because they are deemed to be unsuitable as parents because they wanted a pregnancy termination,” Goodwin says. “In the pre-Dobbs era, there were instances in which it actually happened, mostly to Black and brown women.”
In the case of Gilkar and Ahmed, the fact that the couple requested West terminate the pregnancy is at the center of the case. West suggested to the court at this week’s hearing that she was hesitant to drop her suit and wasn’t satisfied that the couple regretted their desire for an abortion. In her The New York Post piece, West admitted that the couple had wanted her to deliver the baby in their home state of California, but that she went to Texas anyway.
“I agreed to give up any claim to the baby, if they would simply commit to the surgery that would save his life,” West wrote. The first of such surgeries has now taken place, Gilkar and Ahmed have testified before the court that they have retained a pediatric cardiological care team in California to continue treating their son when he is allowed to return home with them. Still, West has not dropped her claim against the couple, and an infant remains parentless in its most vulnerable moment.