Justice Elena Kagan on Tuesday rejected a request for the Supreme Court to get involved in the case of a surrogate enmeshed in a multistate custody battle with California parents who at one point asked her to abort the fetus because of a heart defect.
McKenna West gave birth to the couple’s baby in Texas last month and argued in court there that California denied her due process when it awarded custody of the child, whom she named Gabriel, to his genetic parents.
A Texas judge dismissed her claims. She then appealed to the Supreme Court. Kagan denied to issue a stay in the case in a Tuesday order with no written decision.
In a filing earlier this month, attorneys for West urged Kagan, who handles emergency matters involving California, to intervene because a “life hangs in the balance.” They said West is concerned that Gabriel might not get the medical care he needs if he remains in the custody of his parents, Omar Ahmed and Nausheen Gilkar.
Gilkar told a judge in Dallas last month that she and her husband were dedicated to getting the son they named Rumi the help he requires — and that the “unstable” West is making an already tragic situation more fraught.
“She’s making us run from doctor to doctor, state to state with our baby. She’s trying to take him,” Gilkar testified.
The Texas Supreme Court issued a ruling last week allowing the baby to be moved to California, where the parents have medical care for the child lined up, the Texas Tribune reported. “Sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter,” the ruling said.
The baby was born with hypoplastic left heart syndrome, a congenital defect in which one side of the organ is underdeveloped, preventing normal blood flow. The condition can quickly become fatal if it is left untreated.
According to court documents obtained last month by The Associated Press, the newborn was in critical condition and “suffering from potential complications” following heart surgery in Texas.
The parents had turned to surrogacy after efforts involving in vitro fertilization treatments failed. They signed a contract in August 2025 with West — a cardiac nurse who was living in Anchorage, Alaska — that included a clause stipulating the pregnancy could be terminated if there was a “fetal abnormality.”
West said the parents tried to invoke the clause after the heart defect was diagnosed, but she refused to comply. She ultimately headed to Texas, where her case was championed by state Attorney General Ken Paxton, the Republican nominee for a U.S. Senate seat this fall.
With Paxton’s assistance, West got an order directing that the newborn get necessary lifesaving care in Texas after he was born. The parents had planned for him to get that care in their native California.
Judges in Alaska and Texas ultimately deferred to the California ruling, according to West’s Supreme Court filing.
West alleges that Ahmed and Gilkar violated their surrogacy agreement by seeking custody in California. She said the agreement had called for any legal challenges to be heard in Alaska.
West contended that the California decision should be tossed out because she did not get proper due process, and she said she is being kept in the dark about the baby’s health.
In a court filing, West said that “without relief, she will receive no further information about the child she carried for 37 weeks and fought to save.”
The parents’ attorney said that they are focused on the baby’s health and that West is engaged in “political theater.”
