Contract allowed termination request upon fetal abnormality
U.S. Supreme Court Justice Elena Kagan on Tuesday turned away an emergency request from McKenna West, an Alaskan surrogate who had sought custody of an infant born with a heart defect. In a one-line order, Kagan declined to disturb a California court’s ruling recognizing the genetic parents — identified in filings as N.G. and O.A. and residing in California — as the baby’s legal parents.
West signed a surrogacy contract with the couple that included a provision allowing them to request termination of the pregnancy if a fetal scan identified a serious abnormality, according to court filings. After a scan diagnosed the baby with hypoplastic left heart syndrome, West said, the couple pressed her to have an abortion. She said she could not go through with it, and in August traveled to Texas, where she gave birth.
Texas Attorney General Ken Paxton, a Republican now running for the Senate, intervened to secure a state court order directing that the baby receive “medically indicated, life-saving treatment.” The same court issued a temporary restraining order preventing West from holding herself out as the baby’s parent or making medical decisions on his behalf, according to The Wall Street Journal.
The Texas court subsequently ordered that the baby’s genetic parents be allowed to take him to California for care, and the Texas Supreme Court upheld that order last week.
Kagan, who is assigned to review emergency requests originating from California, issued her one-line order on Tuesday declining to disturb the lower court’s recognition of the couple as the legal parents.
Hypoplastic left heart syndrome is fatal for a newborn without immediate open heart surgery, followed by a second open heart surgery and a third before age five, according to Tabitha Moe, an adult congenital cardiologist and clinical professor at the University of Arizona College of Medicine Phoenix. With those procedures, Moe said, the vast majority of patients over the last 30 years have grown into adults living lives comparable to those with Type 1 diabetes — requiring ongoing monitoring but with few physical limitations.
West’s case drew support from some Christian conservatives and antiabortion activists. She is represented by lawyers from the Alliance Defending Freedom, a Christian legal advocacy group that has argued and won multiple cases before the Supreme Court.
In a statement provided to the Journal, the genetic parents said they “have done everything in their power to ensure their child has the best medical care possible, and they are committed to providing that care into the future.”