McKenna West, the surrogate mother at the heart of a dramatic case that involved the California-based biological parents demanding that she abort the baby boy she carried; a flight from Alaska to Texas; and an emergency order from the Texas attorney general ensuring the child would get medical care; is now prepared to go to the U.S. Supreme Court to get custody of the baby she carried and birthed.
The child’s biological parents demanded West have an abortion when an ultrasound revealed that he has a serious but treatable heart defect, but West instead fled to Texas to give birth. The biological parents sued to force West to give birth in California with their own medical team present, but Texas Attorney General Ken Paxton issued an order requiring that the child, called Baby Gabriel by West, receive the treatment he needs in the state.
West gave birth early on August 12 and the baby was immediately taken away from her. The biological parents now have custody and are in Texas overseeing his care.
West, however, is now prepared to fight for custody of the child. Lincoln Wilson, West’s attorney, stated that his client is willing to fight for the baby boy all the way to the U.S. Supreme Court. “She is seeking parentage of the child because she gave birth in Texas, and in Texas, if you give birth to a child, it is your child,” Wilson stated.
“These forced abortion clauses that demand that women have to be required to abort a child at the late term are quite common in surrogacy contracts,” Wilson continued. “There’s some contracts the law doesn’t enforce. Like the law doesn’t enforce a hitman contract. This is basically a hitman contract, and we think that even if you accept a liberal view of abortion rights, the right to get an abortion also entails the right to not get an abortion.”
Currently, the biological parents have custody due to a California ruling. West is not legally considered a parent, cannot remove him from the hospital, and is not permitted to make medical decisions. But her attorney considers that custody order “void.”
“We think that once that California judgment is removed … that basically she is the mother under Texas law,” Wilson said. “We are taking that challenge up through the California courts, and we’ll take it up to the U.S. Supreme Court if we have to.”
A surrogacy case at the U.S. Supreme Court could have a wide range of legal implications for the industry. If a ruling affirmed state laws stipulating that the woman who gives birth to a baby is the child’s legal mother regardless of genetic parentage, those utilizing surrogacy to procure a child would be faced with situations where their biological children might be the legal children of others as long as the surrogate mothers gave birth in a different state.
Meanwhile, the Trump Department of Health and Human Services has also gotten involved in the case. Live Action reported August 14 that “the Department of Health and Human Services’ (HHS) Office for Civil Rights is sending a letter to Children’s Medical Center of Dallas and UT Southwestern Medical Center reminding them that they are required under federal law to provide treatment to baby Gabriel … HHS told Fox News Digital on Thursday that it is watching baby Gabriel’s case and will provide technical assistance to the hospitals as doctors care for him.”
The HHS department “explained in the letter that under federal disability law the hospitals cannot withhold medical treatment for a patient based on that person’s disability, ‘including based on judgments that the life of someone with a disability has less value or that the individual would impose a burden on others’ … (including) life-sustaining care.’”
The bizarre battle over custody of Baby Gabriel has just begun. If his biological parents had been successful in their demands, he would have been killed in the womb. Now, the parents who wanted to eliminate him through a late-term abortion have custody, with his birth mother — who saved his life with the assistance of the pro-life movement — determined to get him back.
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