Supreme Court Justice Elena Kagan on Tuesday declined to intervene in a contentious surrogacy and custody dispute, rejecting an emergency application from surrogate McKenna West, who asked the high court to halt a California court order that backed the child’s biological parents.
The denial is the latest in a series of legal wins for the biological parents and losses for West. Tuesday’s order declined to provide her with what the parents said would have been a chaotic, confusing and needless judicial intervention.
As is typical for such orders, there was no explanation accompanying the denial from Kagan, who is assigned to field emergency litigation from California.
West gave birth in August to the child at the center of the dispute. The Alaska woman did so in Texas, which bans abortion. She said the California couple, Nausheen Gilkar and Omar Ahmed, pressured her to have one after learning that the baby faced a life-threatening heart condition.
The surrogate argued at the Supreme Court that the California court order backing the couple’s parental rights violated her due process rights because, she said, the state court didn’t have jurisdiction over her. Among the firms representing her was Alliance Defending Freedom, a Christian conservative legal group that has had success at the high court.
The parents opposed West’s application on both the facts and the law. In their partially redacted response, they said there was no emergency to resolve because they had been providing the care that West said she wanted. They said they had been with the child, whom they named Rumi, “around-the-clock in a hospital’s pediatric intensive care unit,” and so, they said, Supreme Court intervention would only cause chaos and confusion regarding the future of that care.
They also said that West’s application, which referred to the child as “Baby G.,” presented “an overly optimistic picture, unfortunately, of the child’s life expectancy and medical outlook.”
In West’s final reply brief on Monday, her lawyers noted that the Texas Supreme Court had cleared the way for the baby’s transfer from Texas to California. They continued to urge the justices to step in, warning that the couple would otherwise be free to consider “palliative care” for the baby. As of Tuesday morning, the child was still in Texas, according to the couple’s lead attorney, Adam Wolf.
Wolf, a partner at Peiffer Wolf Carr Kane Conway & Wise, said after the denial that they “are grateful that Rumi can continue receiving the treatment he needs to survive, and that he will not be stripped away from his parents, who are ensuring their child receives top-notch medical care.”
