This could get so much uglier.
An Alaskan surrogate who sued to obtain medical care for a baby she carried is still requesting that a Dallas court give her custody.
Rumi, who is a week old, has undergone heart surgery under the care of his biological parents and is in critical condition at a Dallas area hospital, as of Monday, said Lee Budner, the couple’s attorney.
Their surrogate McKenna West, who gave Rumi a different name, Gabriel, had challenged the couple’s parental rights after she said they were going to refuse medical care for the baby upon birth and were forcing her to get an abortion, the latter of which the parents deny. In a statement released by West’s attorneys on Tuesday, she confirmed that she is still pursuing custody to give Rumi continued care despite his parents’ already approving his first surgery.
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If the courts side with West, the decision could reshape surrogacy for couples wanting to use this method to have a child and for the women who offer to carry these babies. Surrogacy experts say the case threatens to erode the parental rights of birth parents, water down pregnancy termination clauses in surrogacy contracts, and discourage couples from using surrogacy to grow a family in Texas.
“This poses the question, how much power do we give the state over our private families?” said Christine Andresen, an attorney with Austin-based CHA Law Group specializing in surrogacy law.
The case has captured the attention of conservative groups, including the Alliance Defending Freedom, which represents West, Texas Alliance for Life, and Texas Right for Life because it touches three conservative priorities: eliminating abortions, upholding traditional parental rights and their latest focus — restricting commercial surrogacy.
West sought support from anti-abortion groups that helped move her fight to Texas, Rose said. Live Action paid for West to travel to Texas from Alaska where she was connected with the Alliance Defending Freedom, a conservative Christian legal advocacy group representing her in the case. In Texas, Attorney General Ken Paxton has also intervened on her behalf.
West’s case comes as conservative state lawmakers are considering restrictions on commercial surrogacy and IVF, the method that makes gestational surrogacy possible. Earlier this year, Lt. Gov. Dan Patrick issued interim charges that directed senators to examine foreign nationals “exploiting” Texas surrogates and the Texas Republican Party adopted a platform calling for a ban on the practice.
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Surrogacy experts say the case is unusual and does not reflect most gestational surrogacy agreements. However, it could fuel legislative changes in Texas.
“I think it’s being teed up for something much larger,” said Rachel Rebouché, University of Texas School of Law professor who specializes in reproductive law.
Created before any medical process, a surrogacy agreement protects the rights of intended parents and the surrogate, who both hire their own lawyers to spell out their respective terms, said Rebouché. It defines each party’s responsibilities, the financial terms of the agreement and typically, states that the intended parents will have parental rights, including in making medical decisions for the fetus.
West is contesting the entirety of the surrogacy agreement — which was executed in Alaska with the birth parents Omar Ahmed and Nausheen Gilkar, who are from California — to assert that she should have parental rights over the baby. The Tribune has not been able to obtain a copy of West’s surrogacy agreement with Ahmed and Gilkar.
West has tried to dispute the surrogacy agreement in Alaska and California, but the Alaska court deferred it to the California court to decide since that was where the birth was supposed to take place, and the California court ruled in Ahmed and Gilkar’s favor. Last week, a Dallas County family district court judge also rejected West’s request for a temporary restraining order in the case, recognizing Ahmed and Gilkar’s parental rights and giving them custody once the child was born.
“Surrogacy arrangements are designed to get people to get to a meeting of the minds and to get on the same page, so that conflict doesn’t erupt later in the pregnancy,” Rebouché said.
West hopes that Texas law will still give her parental rights now that she gave birth because Texas family law recognizes the woman who gives birth in Texas as the legal mother of that child, Rebouché said.
If the court does not recognize the surrogacy agreement and Gilkar and Ahmed’s parental rights, the court would have to apply default parentage rules that generally recognize the person who gives birth as the legal parent, Rebouché said. In this case, that would be West.
Andresen says this ruling would instill fear in couples who want to use a surrogate to have a child because they wouldn’t automatically have rights to their biological child.
“I imagine that it would be scary for Texas’ intended parents if the AG got to decide whether or not they could keep a child that was biologically theirs,” Andresen said.
See here for the background. There are a lot of quotes in this story from the worst forced-birth advocates out there, so read carefully. There’s a hearing set for August 25, so we’ll see what happens. I feel confident this one is going to SCOTUS one way or another. As for what may happen in the next legislative session, obviously this election will have some bearing on that. How far the fanatics want to go if they’re still in control is a question I’d rather not have to ponder. The 19th, Slate, and KERA have more.
This confuses me:
Texas was actually one of the first states to recognize surrogacy arrangements (a.k.a. gestational agreements), by enacting the Uniform Parentage Act in 2003. They’re codified in Chapter 160, subchapter I of the Texas Family Code. In particular, Family Code Section 160.753(a) provides that, “Notwithstanding any other provision of this chapter or another law, the mother-child relationship exists between a woman and a child by an adjudication confirming the woman as a parent of the child born to a gestational mother under a gestational agreement if the gestational agreement is validated under this subchapter or enforceable under other law, regardless of the fact that the gestational mother gave birth to the child.”
As long as the particular gestational agreement in this case satisfies the provisions of Section 160.754, then this is a pretty cut-and-dried case: West isn’t legally the mother.