Texas Supreme Court rules baby delivered by surrogate can leave Texas

The Texas Supreme Court has rejected a surrogate’s attempt to keep the child she delivered in Texas, clearing the way for the biological parents to take the medically fragile infant to California.

On Thursday, the Texas Supreme Court denied the request by McKenna West, an Alaskan surrogate who had tried to block the biological parents from removing the 1-month-old from Texas and taking him to a hospital in Los Angeles, where the couple lives.

“Sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter,” the court ruled, siding in favor of parents Nausheen Gilkar and Omar Ahmed. “The limited materials before this Court describe uncontroverted medical testimony of the child’s Texas physician indicating that ‘the child’s best interest in order to preserve the child’s life as long as possible [i]s an ICU-to-ICU transfer.’”

Among the testimony the Texas Supreme Court considered was that of both the guardian ad litem appointed by the court to represent the best interests of the infant and that of his doctors at Children’s Hospital in Dallas, where he’s being treated. Both had testified at an Aug. 25 hearing in Dallas. The trial court case has since been sealed from the public’s view.

A brief filed by the guardian ad litem Susan Duesler to the Texas Supreme Court says the baby’s doctor testified in court that he recommends that the child’s remaining surgeries be performed in a Los Angeles hospital and not doing the transfer soon would create “much more complicated treatment” for the baby. Duesler said the child, who the biological parents have named Rumi, should get the care his doctor recommends, which may include transferring the child to Los Angeles.

“The Guardian Ad Litem testified that the Parents’ ‘have followed the recommendations of the doctors to a T’ and the doctors have ‘unequivocally, no’ concerns regarding the Parents medical decision-making,” the couple’s lawyers stated in a brief before the Texas Supreme Court.

Lawyers for the parents also insisted that hospice is not part of the child’s medical plan.

Since Rumi’s birth in Dallas on Aug. 12, he’s been the subject of a high-profile, multi-state dispute that landed there this summer after West flew to Texas, which bans abortion, to seek custody of the child.

West said she wanted sole conservatorship so she could make medical decisions for the child instead of the biological parents. She accused Ahmed and Gilkar of pressuring her into getting an abortion because the fetus was diagnosed with a potentially fatal heart condition. The child was diagnosed in April while in utero with an underdeveloped heart, preventing normal flood flow. He has already undergone one surgery and will likely need others.

So far, the parents have won court fights in California, Alaska and Texas to maintain custody. While they have disclosed they once considered having West terminate the pregnancy, they say they are committed to focusing on Rumi’s health and medical care. Gilkar, Rumi’s mother, told a Dallas court in August that the couple sought out surrogacy after she underwent eight unsuccessful rounds of in vitro fertilization and a hysterectomy.

“While McKenna West has been conducting a publicity tour, Rumi’s parents have been quietly caring for their child and following the recommendations of Rumi’s medical team,” said Lee Budner, an attorney for the couple in a Friday statement.

West’s attorney did not immediately respond to a request for comment.

Rumi’s parents have also filed a heavily redacted response to West’s request to the U.S. Supreme Court to intervene in the matter. Gilkar and Ahmed argue the case has already been decided and falls outside the high court’s jurisdiction. If the nation’s highest court were to intervene and rule in favor of West, it would interrupt their child’s medical care with “chaos.”

“West’s requested stay to the United States Supreme Court threatens the continuity of Rumi’s medical care,” Budner said in his statement. “A stay would not change who Rumi’s parents are. It would only create confusion over medical decision-making authority and jeopardize the providers’ ability to rely on the parents’ consent to Rumi’s treatment. “