The Supreme Court Is Being Asked to Intervene in a Texas Surrogacy Battle. The Justices Must Say No.

Jurisprudence McKenna West leaving a court hearing on Aug. 25 in Dallas. Chitose Suzuki/The Dallas Morning News via Getty Images Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. A surrogacy case that has attracted national attention is now before the Supreme Court, and it raises a question that goes to the heart of what it means to be a parent. McKenna West entered into a surrogacy contract in which she agreed to carry and deliver the genetic child of Nausheen Gilkar and Omar Ahmed. The contract explicitly provided that she would terminate the pregnancy if the fetus had a serious birth defect and the intended parents requested an abortion. About 20 weeks into the pregnancy, the parents learned that the fetus had a severe heart defect. They asked West to terminate the pregnancy. She refused and moved from Alaska to Texas, where the baby was born. After undergoing complex heart surgery in mid-August, the baby remains in critical condition. West, supported by anti-abortion advocacy groups, is now seeking custody of the child. Last week, she asked the Supreme Court to take away the parents’ right to control the medical care of the child while she pursues her request for custody in the Texas courts. The case presents a profound conflict between two important principles: a woman’s right to control what happens to her own body during pregnancy and the rights of the people who are legally and biologically the child’s parents once that child is born. This is not the first case in which a surrogate has refused to terminate a pregnancy after the intended parents learned that the fetus had serious birth defects. In October 2011, Crystal Kelley signed a contract to bear a baby for a couple in Connecticut, where she also lived. She agreed to terminate the pregnancy if a serious birth defect were discovered and the parents requested an abortion. When she was five months pregnant, ultrasound examinations revealed that the fetus had a cleft palate, a brain cyst, and heart defects. The intended parents asked Kelley to terminate the pregnancy and offered her $10,000. Despite her agreement, Kelley fled to Michigan, where surrogacy contracts were unenforceable. She delivered the baby and was listed as the mother on the birth certificate, even though she had no genetic connection to the child. With Kelley’s approval, the baby was adopted by Rene and Thomas Harrell, who lived in Massachusetts. Although the child had significant health problems, she remained with her adoptive parents until she died at 8 years old. These cases expose a difficult tension at the heart of surrogacy. A surrogate plays an extraordinary role in a child’s development and assumes the physical risks of pregnancy. In addition, some feminists argue that women cannot voluntarily enter into surrogacy agreements because they cannot know in advance the bond they may develop with the fetus during pregnancy. But these aspects of surrogacy do not make the surrogate the child’s parent. These cases also raise difficult questions about the intended parents’ rights to make decisions concerning their biological child before birth—and about whether a contract governing those decisions should be enforceable. In 2020 New York responded to these and other concerns by passing the Child-Parent Security Act, which included the nation’s first Surrogates’ Bill of Rights. The Bill of Rights recognizes surrogates’ bodily autonomy and allows them to make all healthcare decisions for themselves and the pregnancy, including whether to terminate it. At the same time, the law draws an important line: A surrogate cannot use her own egg to create the embryo she carries. She therefore cannot be the biological mother of the fetus she carries. The law also expressly protects the parental rights of the intended parents by requiring the surrogate to surrender the child to them immediately upon birth. The intended parents then assume all legal-support obligations. That balance is important. The law can recognize a surrogate’s bodily autonomy without transforming her into the legal parent of the child she carries. West is asking the Supreme Court to take a different approach. She claims that parents who ask a surrogate to terminate a pregnancy—even when the surrogate explicitly agreed that such a request could be made—could lose their parental rights simply by making that request. That argument should give the court pause. The very purpose of a surrogacy agreement is for a surrogate to carry a child for the intended parents. In reliance on that agreement, the parents entrust the surrogate with their embryo, which contains their own genetic material. Even assuming that intended parents have no right to force a surrogate to undergo an abortion if a fetus is diagnosed with a life-threatening medical condition, that fails to answer the separate question of who the child’s parents are after birth. That distinction is especially important here. According to court filings, Gilkar and Ahmed initially asked West to terminate the pregnancy after learning of the baby’s heart condition. But after West refused, the couple told the Texas court that they intended to assume custody of, and provide medical care for, their child. The baby was born on Aug. 12, and Gilkar and Ahmed agreed to several planned surgeries shortly afterward. There is no basis for treating their earlier request for an abortion as proof that they have forfeited their parental rights. The courts should be careful not to create a rule under which a parent’s request for an abortion during pregnancy can later be used to sever that parent’s relationship with the child after birth. That would turn a dispute over reproductive decisionmaking into a rule about parenthood itself. The surrogate’s right to bodily autonomy does not automatically make her the child’s parent. The law has a way to recognize both propositions at once: A woman may have complete authority over her own pregnancy, while the intended parents retain parental rights over the child who results from the surrogacy. West agreed to serve as the gestational surrogate for Gilkar and Ahmed’s child. She did not provide the genetic material that created the child, and the surrogacy agreement was premised on the understanding that Gilkar and Ahmed would be the child’s parents. Once that child was born, their parental rights should not depend on whether West agrees with the medical decisions they make or whether she wants custody of the child. The courts should preserve that distinction. The difficult, deeply personal decisions surrounding a pregnancy should not be allowed to erase the parents’ legal rights after the child is born. Jurisprudence Reproductive Rights Supreme Court Texas Judiciary