Couple Who Wanted Surrogate to Abort Their Child Take Custody After He’s Born

The biological parents of a baby boy born to a surrogate mother have gained custody of him despite the fact that they tried to force the surrogate to abort him after discovering he had a serious but treatable heart defect.

Contract Killing

Californians Nausheen Gilkar and Omar Ahmed contracted with Alaskan McKenna West to carry their child. The contract included a clause allowing the couple to demand West abort the child if a “fetal anomaly” were discovered.

According to a 2013 paper from the University of Michigan’s law school, “Termination clauses regularly are included in surrogacy contracts; in fact, it may even be considered malpractice for an attorney to draft a surrogacy agreement without a termination clause.”

In April, when the baby, whom West named Gabriel, was at 20 weeks’ gestation, an ultrasound revealed he had hypoplastic left heart syndrome, a congenital defect in which the left side of the heart does not form completely and therefore cannot properly function. While serious, the condition can be treated via a series of postnatal surgeries. “Specialists have stated baby Gabriel has a good chance of survival” if he receives the surgeries, noted LifeNews.com.

LifeSiteNews reported:

Upon discovering the heart defect, Gilkar and Ahmed demanded that West abort the baby and invoked the termination clause in the surrogacy contract, cloaking their demand in faux concern about Baby Gabriel’s quality of life. No physicians in Alaska were willing to perpetrate a late-term abortion at that stage (22 weeks). The couple then scheduled an abortion in Seattle for late April (when Baby Gabriel was 23 weeks), which was delayed to a 24-week abortion in May.

By this time, West, a nurse and single mother of two, had decided she wanted Gabriel to live, setting the stage for a confrontation that would make national headlines.

Family Feud

Frustrated by West’s refusal to live up to the terms of her contract, Gilkar and Ahmed stopped sending her payments and demanded that she return money they had already sent her — plus damages of up to $250,000. They also sued to require her to give birth in California with doctors of their choosing.

West said she would agree to the California birth — and even relinquish all parental rights to Gabriel — if Gilkar and Ahmed would state in writing that they would get the newborn the lifesaving treatment he needed. They balked.

An Alaska superior court denied the motion to require West to relocate to California, after which West filed for custody of Gabriel in her home state so she could authorize the surgeries. Then, aided by podcaster Ellen Fisher and Live Action founder and president Lila Rose, she flew to Texas so that she could give birth in a hospital willing and able to treat Gabriel’s condition.

“I want to fight for him because he deserves that chance,” she told Live Action News. “There’s no guarantee; there’s not a guarantee with anything. But he deserves a chance of living life outside of my womb. I just really pray he gets that opportunity.”

Paxton’s Protection

Into the picture stepped Texas Attorney General Ken Paxton, the Republican nominee for one of the state’s U.S. Senate seats. On Tuesday, Paxton announced he had obtained a court order guaranteeing that Gabriel would be treated for his heart defect as soon as he was born. According to Paxton’s press release:

The order prevents anyone from withholding or obstructing necessary treatment or removing, discharging, or transferring the child while the court considers the case. The hospital and treating physicians must immediately notify the court and all involved parties of the child’s birth, initial medical assessment, any refusal of consent to medically indicated treatment, and any request to discharge, transfer, or transport the child. If medically indicated treatment is refused, the court will hold an emergency hearing to determine whether intervention is warranted under Texas and federal law and to protect the child’s life.

The next day, Gabriel was born. Three weeks premature, he was placed in the hospital’s neonatal intensive-care unit for stabilization so that his first operation could take place. West, however, never even got to hold Gabriel; a temporary restraining order issued Tuesday forbade her to have any contact with him.

Custody Prattle

Meanwhile, Gilkar and Ahmed took custody of the baby.

The couple’s attorney, Lee Budner, said Gabriel “is now in their physical custody while he receives expert medical care at a tertiary care center.”

Then he had the gall to claim that this is what his clients had wanted all along and, furthermore, that West was the one who had interfered with the baby’s care.

“Thankfully, McKenna West’s baseless attempt to interfere with his medical care has been soundly rejected by the courts,” he said.

 “Right now,” he added, “our clients are continuing to place their baby’s health and well-being first, following the advice of the baby’s medical team, as they always have and just as any loving parent would.” Those would be the same parents who went to great lengths trying to force West to abort Gabriel.

Gabriel’s saga is far from over. In addition to his surgeries, there are still thorny legal issues to be settled. West’s attorney said they are challenging the parentage orders “because we think that Texas law makes a woman who gives birth to a child the mother of the child.” Another hearing on the case is scheduled for August 25 in Dallas County court.