A correct ruling, in my opinion.
A Texas judge has ruled against an Alaskan surrogate in her bid to obtain custody over a medically fragile baby she birthed in Dallas.
According to a Wednesday filing, attorneys for the surrogate McKenna West are now asking the U.S. Supreme Court to intervene after Texas’ unfavorable decision.
“A stay is needed to preserve the status quo and ensure M.W. (McKenna West) can advocate for her rights and remain informed about Baby G. during this critical time in his young life,” the filing stated.
The high-profile, multi-state dispute landed in Dallas last month after West flew to Texas, which bans abortion, to seek sole conservatorship over the child. She said she wanted custody so she could make medical decisions for the child instead of the biological parents Omar Ahmed and Nausheen Gilkar. She also accused Ahmed and Gilkar, who are from California, of pressuring her into getting an abortion because the fetus has a condition where the left side of his heart is severely underdeveloped.
Texas Attorney General Ken Paxton intervened and state District Judge Ashley Wysocki, a recent Gov. Greg Abbott appointee, ordered two Dallas hospitals to provide care and that the baby remain in Texas until a final decision could be made about West’s conservatorship case.
After West gave birth on Aug. 12, Ahmed and Gilkar, who named the child Rumi, obtained a restraining order barring her from seeing or holding the child. At a subsequent Dallas court hearing, they did not deny they at one time considered abortion after learning the child was diagnosed with an underdeveloped heart, preventing normal blood flow. But, they said they eventually decided the pregnancy should proceed.
They informed Wysocki that their dispute with West escalated after they tried to get West to come to California to meet with medical experts to devise a plan for Rumi’s medical care.
Wysocki’s decision last week is not publicly available because the entire case has been sealed, a clerk for the judge informed The Texas Tribune. Neither the legal team for West nor the one representing the parents immediately returned emailed requests for comment.
However, within West’s appeal on Wednesday are details that the Dallas court eventually ruled against her on Sept. 2 in her fight for sole conservatorship over the baby she calls Gabriel. The judge — apparently deferring to a decision by the California courts that upheld Gilkar and Ahmed’s parental rights over Rumi — dismissed West as a party.
“That irreparable harm from Texas’s enforcement of the California judgment matters immensely because Baby G. is in the midst of a course of several life-saving surgeries needed to treat his condition,” West’s recent filing states.
West’s attorneys contend that because of that dismissal, “future care for Baby G. is uncertain and unknowable.” One surgery has been performed on the child but Rumi’s parents have said through their lawyers that no other information about the child’s condition will be released.
West’s appeal also indicates that the couple have sued her for at least $100,000 in damages.
West’s filing also revealed that Rumi may be transferred to California and placed in hospice care. “Indeed, the child could be removed from the Texas hospital and taken to California for hospice—despite his treatable condition—around September 17, if not sooner,” her filing states.
See here, here, and here for the background. I don’t know how it is that a lawsuit in state district court can get appealed all the way to SCOTUS like that. Someone will need to explain that to me. As for the appeal itself, it sounds mostly like a disagreement about parenting decisions, and I guess you have to believe that the surrogate has standing to even entertain any of that. KERA adds some details.
West, Gilkar and Ahmed entered into a surrogacy agreement last year in which West agreed to terminate the pregnancy at the genetic parents’ request if doctors detected a fetal abnormality. The fetus was diagnosed with hypoplastic left heart syndrome in April, about 20 weeks into West’s pregnancy.
Gilkar and Ahmed requested West have an abortion. West scheduled at least two different appointments to get the abortion, but she testified in court last month that she couldn’t go through with the procedure.
West alleges Gilkar and Ahmed then further pressured her to get an abortion. Gilkar, who also testified, said she and her husband pivoted to finding medical care for their unborn son once West refused an abortion.
But West then withheld medical records from the couple, Gilkar testified, and did not inform them of her move to Texas ahead of time. West made the move because Dallas hospitals could provide life-saving care for the child, and she had a support system here, she said. West also connected with anti-abortion organizations, including Christian legal group Alliance Defending Freedom.
Texas Attorney General Ken Paxton soon intervened in the case, asking a judge to issue an emergency order requiring doctors to provide the boy “stabilizing and life-sustaining” care upon his live birth. Paxton withdrew from the case after the child was born Aug. 12 and doctors performed the Norwood procedure, the first of three open-heart surgeries needed to treat his heart defect.
The newborn had breathing problems and received a blood transfusion after the surgery, Gilkar testified.
West wrote in a New York Post op-ed that the genetic parents committing to providing life-saving care for the child was “all it would take to end” the litigation, but later backtracked, saying in court she would continue the case. Although Gilkar testified she and her husband would continue pursuing surgery for the boy, West’s testimony indicated she didn’t believe them.
West still doesn’t, according to Wednesday’s petition, because Ahmed and Gilkar are still challenging the order Paxton obtained in Dallas court.
“If successful, they will be permitted to do what the Texas Attorney General thus far prevented them from doing: decline to provide Baby G. with any further care,” the filing reads.
Still pending is West’s lawsuit in Alaska asking a trial court to deem her the child’s legal parent.
I don’t think I knew that there was a lawsuit in Alaska as well. Ms. West is a busy litigant. I don’t think any of her actions have merit, but I have no idea how this will play out.
“I don’t know how it is that a lawsuit in state district court can get appealed all the way to SCOTUS like that.”
SCOTUS is NOT OKAY
That’s how it happens.
SCOTUS has jurisdiction to review decisions by a state’s highest court if they want to take the case. Volumes have been written about what goes into that determination, which as we’ve seen recently is also a moving target.
This case is a mess on the facts alone, and with the case file sealed, it’s unwise to offer any opinion, unless just based on hypotheticals, and then it’s really a policy debate.
You can’t believe the lawyers either because they are hired adovocates and don’t have to tell the truth. Thanks to SCOTX, Texas lawyers enjoy civil immunity even for lying under oath. Talking to the media is not even talking under penalties of perjury. So there. Ignore what the lawyers (on a case) say about the facts of the case, especially when you can’t even verify what’s been filed in court.
I was tempted to comment before, but see above. A key legal/jurisprudential issues obviously is whether the agreement is enforceable, and if so, how. That depends in the first instance on the state and which state’s law applies to agreement-formation, but then you have the facts change so as to provide a different state (Texas) with jurisdiction at the minimum to determine whether Texas has jurisdiction because the mother (and now child) are within the territory.
Even assuming another state’s law governs, should the court that hears the case in Texas give effect to that state’s law (or the chosen law in the surrogacy agreement)?
It seems pretty clear that an agreement to procure abortion will be deemed against public policy in Texas and either be declared void altogether, or just not given effect. As a general rule, you can’t get specific performance on a void contract, or any enforcement.
But now apparently, damages are also being sought, presumably for breach of contract, which again implicates contract validity issues.
In sum, the case is messy on the facts (which we don’t know a lot about) as well as on the jurisdictional and choice-of-law issues.
That said, it’s no doubt of great public interest and the case file should be unsealed at least partially, with proper redactions.
As for this going to SCOTUS, I don’t see how that would be proper procedurally before first stopping by the SCOTX, which is the court of last resort for all matter civil? Perhaps there was a typo?
If it is the US Supreme Court indeed, what exactly is the federal-law issue? Full-faith-and-credit based on a contract, rather than a judgment? …. Puzzling.
FOLLOW-UP: HOW DID THE ABORTION-REFUSAL CASE GO TO SCOTUS?
Here is why the dispute is in the U.S. Supreme Court, by-passing the Texas high court:
The dispute among the three parents (or claimants as to legal parent status) already went to through the state court system: in California.
The jurisdictional argment to SCOTUS: “Because California makes a writ of mandate the ordinary vehicle to review an adverse ruling on personal jurisdiction, Cal. Code Civ. Proc. § 418.10(c), the California Supreme Court’s denial of review is a final order under 28 U.S.C. 1257(a).”
The full faith and credit clause is involved because a parentage judgment by a California court already exists (not just the underlying surrogacy agreement).
But without an agreement, the surrogate would be considered the legal parent of the child by operation of local law (Texas Family Code), simply based on having given birth in Texas. According to Paxton’s briefing, once born in Dallas, the child is a Texan.
The core legal argument in the SCOTUS centers on whether the surrogate was properly served by the “commissioning parties” in the California action and/or whether the California court otherwise acquired personal jurisdiction over her (by litigation conduct).
She contends that her lawyer only made a “special appearance” to contest jurisdiction there, but the court treated it as a “general appearance” and proceeded to adjudicate parentage against her (which is to say, did assume and exercised jurisdiction, and then adjudicated the merits of the dispute in favor of the commissioning couple and against her). Courts in both Texas and Alaska have already accorded full faith and credit to the California parentage judgment, and thereby denied parent status to the surrogate along with the associated rights, incl. access to medical information and decisionmaking power as to medical treatment.
Apparently, the surrogacy agreement had an Alaska choice-of-law and forum selection provision, which is an issue also.
Even with the high-court legal briefing being public and available for scrutiny, this case is a legal mess in multiple dimensions: Underlying proceedings in three different states, and now federal. An interjurisdictional quagmire and future fodder for law review articles no doubt.
Substantively, the dispute was about the enforceability of a contractual agreement to abort in case fetal anomality (the surrogate refused), but with the baby now born and the “commissioning parties” having won the first round over parentage, they have parental control and are, according to the SCOTUS filing, seeking monetary damages over the surrogate’s refusal to abort, so the forced-abortion issue is not moot. Texas would presumably refuse to enforce this contractual provision, but California may be a different story.
I am curious whether the “commissioning parties” will embrace that label in their response or refer to themselves as parents, given that they prevailed on the parentage issue.
Here is the link to the docket in the SCOTUS
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/26a325.html
AVAILABILITY OF CASE DOCUMENTS:
The emergency filing in SCOTUS is not sealed. But many documents in the record are sealed under California law (categorically confidential) and under a sealing order granted in Texas in the specific case. That said, almost 200 pages in the Appendix are public and you can read them on the SCOTUS website.
The Texas TRO and emergency treatment order obtained by AG in the Dallas case are also not sealed and available on the OAG’s website. One has the initials of the parties in the case style, the other one the full names. I couldn’t locate the trial court case file itself either on the Dallas County/District Clerk’s website or re:SearchTX. Perhaps even the docket sheet has been off-lined.