Justice Elena Kagan on Tuesday refused to intervene in a high-profile custody battle that involved difficult questions surrounding surrogacy and abortion, leaving in place a lower-court order that gave custody to the biological parents in the dispute.
The case drew national attention when a surrogate from Alaska refused to have an abortion after the fetus she was carrying was diagnosed with a serious heart problem. She eventually traveled to Texas and gave birth to the child over the initial objections of the parents, a couple from California.
The baby boy was born in August. He received open-heart surgery and has been in a pediatric intensive care unit at a hospital in Dallas, where the couple have also been living to be with him.
On Tuesday, Justice Kagan, who oversees emergency filings from California, denied the surrogate’s request to block the lower-court ruling in the couple’s favor. She acted on her own without referring the matter to her Supreme Court colleagues. The justice’s order did not include an explanation, as is often the case when the court responds to such filings.
[…]
In their emergency request, Ms. West’s lawyers told the Supreme Court that she had been denied “control over the medically fragile child.” Without intervention from the justices, they said, “she will receive no further information about the child she carried for 37 weeks and fought to save.”
The case should have been resolved in Alaska, her lawyers said, adding that the California courts had stripped Ms. West of her rights to “protect the baby’s life.”
In response, lawyers for the couple said on Friday that they have ensured that “their child receives the lifesaving care he needs — and they are committed to doing so for the rest of his life.”
An order from the Supreme Court blocking state court decisions would allow Ms. West to be involved in the child’s medical care and “serve only to cause chaos and confusion,” according to the heavily redacted filing.
Ms. Gilkar and Mr. Ahmed are “providing the precise medical care for their child” that Ms. West desires, the lawyers said, adding that “a right to life is not at issue here.”
See here for the previous update. It seems clear that the issue is now moot, and so it was proper for SCOTUS to stay out. I suspect that given the bad actors who got involved on Ms. West’s behalf and the unresolved question of what the contract said about abortion and whether it could be enforced, we will see another case like this sooner or later. We will also likely see some bills filed in Texas and in Congress to restrict or even outlaw surrogacy, as that’s what those bad actors had in mind. But for now, nothing has changed. Sometimes that’s the best you can hope for. KERA has more.
The policy debate over surrogacy is not over, nor is the pending mandamus case in the Texas Supreme Court.
While the emergency docket case may be over in the SCOTUS, the Texas high court merely denied immediate interim relief. IN RE M.W., No. 26-1054 (Tex. Sept. 17, 2026)(“The petition for writ of mandamus remains pending. This Order does not foreclose future relief in the event of changed circumstances.”).
A response by the “commissioning parties,” now adjudicated parents per California court ruling, is due today, Sep. 25, 2026. They are labeled “real parties in interest” because this is a mandamus proceeding brought by the surrogate, who is the “relator” in mandamus verbiage. The trial court judge is technically the opposing party (“respondent”).
The Dallas hospital – also an affected “real party in interest” – has already submitted response, in which they disavow any position on the multiple legal issues between the parties, including parentage, surrogate’s (gestational/birth mother’s) standing in the suit affecting the parent-child relationship (SAPCR) in Texas, full faith and credit, and Uniform Child Custody & Enforcement Jurisdiction Act (UCCEJA).
Docket here: https://search.txcourts.gov/Case.aspx?cn=26-1054&coa=cossup
The relevant statute is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), not UCCEJA, which makes sense: Jurisdiction first, Enforcement later.
The genetic parents’ joint brief is now on file in Tex. No. 26-1054 and one of the issues in the case is its (non)applicability of the UCCJEA before the child is born.
The Dallas trial court has already ruled that the Texas is the baby’s home state, but child custody (conservatorship, in Texas lingo) is distinct from establishment of legal parent status and is governed by a distinct uniform law: The Uniform Parentage Law. https://en.wikipedia.org/wiki/Uniform_Parentage_Act
Tex. Fam. Code Chapter 160 (Uniform Parentage Act).
PATERNITY IS NOT DISPUTED
The dispute here is between the gestational mother vs. the genetic mother, which is to say LEGAL MATERNITY. The genetic father is aligned in his interests and legal position with the genetic mother (and is also a signatory to the agreement), but no one is disputing his paternity, so his parent status does not depend on the validity of the gestational/surrogacy contract or on which state’s law applies and is (or is not) given effect under full faith and credit or comity.
PARENTAL RIGHTS EXPLICITLY CONSTITUTIONALISED IN TEXAS
Recently, a new section was added to the Texas Constitution respecting “Parental Rights and Responsibilities.” It provides:
To enshrine truths that are deeply rooted in this nation’s history and traditions, the people of Texas hereby affirm that a parent has the responsibility to nurture and protect the parent’s child and the corresponding fundamental right to exercise care, custody, and control of the parent’s child, including the right to make decisions concerning the child’s upbringing.
TEX. CONST. art. I, § 37.
Because the surrogate is not married, there is also no marital presumption under which the birth mother’s husband would otherwise be deemed a parent. For that reason alone, at least one genetic parent’s claim to the child (and decision-making authority) should trump the surrogate’s claim.
Further, the child was born in Texas, so Texas law applies by default. Even if the gestational agreement is void or voided, the male “commissioning party” would be adjudicated a legal parent based on the genetic link (unless there was a mistake and the embryo was not produced with his sperm). There is no dispute here in that regard.
BIRTH TOURISM OF A DIFFERENT KIND
What’s arguably ironic here is that the surrogate engaged in what otherwise would be called birth tourism, albeit for the purpose of choosing more favorable (for her) Texas forum and state law, given that she resisted the “commissioning parties'” demand for an abortion upon discovery that the fetus had a heart defect. What is more, she obtained the support of the Texas Attorney General in this endeavor, who intervened in the name of the State of Texas in the Dallas case. This amount to the inverse of “abortion tourism” to other states with a less restrictive regime.
There are many good procedural reasons for the Texas Supreme Court to deny the surrogate’s mandamus petition as detailed in the opposing parties’ brief; there are nevertheless important jurisprudential issues that should be decided authoritatively because this scenario is likely to recur.
But don’t hold your breath. Providing clarity in the law is often not a high priority in the Texas high court. Alas. Just look at their handling of the Texas Heartbeat MDL appeal and the high court’s delay in resolving the many cases involving COVID measures after issuing interim stay orders in ideological knee-jerk fashion.
ARE SURROGACY CONTRACT WITH ABORTION CLAUSES VOID IN TEXAS?
One intriguing issues is here whether Texas must (or should) give effect to another state’s parentage determination predicated on a surrogacy contract that would be illegal or at least unenforceable in Texas.
Even if the surrogate can’t legally prevail now that the child is born and undisputably has at least one legal parent (the bio dad) who can consent to medical treatment, should the surrogate be able to obtain a declaration that the surrogacy contract is void as a whole (or in part) notwithstanding her preclusion from gaining any right to access to the child or even only health care information about his medical treatment and condition?
THE BUT-FOR NEXUS
Given that the child would not be alive had the surrogate not refused to comply with the contract, it would seem that the surrogate/birth mother should have standing to assert at least a declaratory judgment claim even if she lacks standing under the Family Code.
But-for the surrogacy arrangement, she would not have been pregnant with the genetic parents’ child. So, at the minimum, the surrogate is a party to a contract intricately linked to the child. And even if the contract is deemed or declared void, she still carried and gave birth to the child as a factual matter. It’s hard to see how she does not have a sufficient stake in the matter of her pregnancy and its outcome and legal and real-life aftermath. That should suffice as far as constitutional standing to participate in the SAPCR concerning the child.
NONPARENT INTERVENTION(S)
AG Ken Paxton intervened in the SAPCR case as a nonparent under Rule 60 of the Texas Rules of Civil Procedure (asserting a “parens patriae” interest in the unborn child’s welfare). Shouldn’t the surrogate have an even stronger claim to intervene under Rule 60, having actually carried and given birth to the child (unlike Ken Paxton) and being a contracting party (unlike Ken Paxton) and thus intimately involved and interested? If Ken Paxton can assert a legal interest in the welfare of the child as a nongestating nonparty, why not the woman who endured the pregnancy and brought a new Texan into existence? Not to mention over opposition and at certain risks to her, including the prospect to being sued and running up a large bill in attorney’s fees.
This case for legal standing independent from statutory standing based on allegations of parentage (as defined by the Family Code) would appear even stronger if the surrogate faces financial liability to the commissioning parties either under the contract or on some other theory of liability, should the contract be deemed void.
The questionable validity of the underlying contract also raises a sub-issue of severability: A Texas court would likely rule that the surrogate cannot be held liable for not going through with the requested abortion (“wrongful life”) because abortion in illegal in Texas, but what if the court were to rule that the entire contract is void? Would the surrogate then have to refund any money she had already been paid to restore the parties to their respective condition before they signed on the dotted line? Or would she be entitled to additional money, perhaps compensatory damages? Consider that neither party contracted in Texas or under Texas law, and that the decision to come to Texas was the surrogate’s. Where do the equities lie in this scenario? Which state’s law should prevail in a dispute between and among non-Texans? Which court should decide and which jurisdiction’s law should govern?
WHO DECIDES, AND WHO PAYS?
Unfortunately, there are likely massive health care liabities riding on who is the parent because the parental rights entail parental liabilities. It’s one thing for the attorney general to intervene to preserve a medically fragile child’s life at any cost, but who then bears those costs? Ken Paxton is not going to pay them from the OAG’s budget.
One option is to socialize these costs, either by having the taxpayers support the strong pro-life policy in Texas or spread it to the other policyholders if covered by medical insurance. The default option under existing law, however, is to hold the parents financially responsible in the first instance, and possibly force them into bankruptcy. This would be followed by discharge in full or in part, which will have the effect of shifting the costs (in the form of unpaid bills) to the health care providers. If a bankruptcy trustee gets appointed, the trustee may perhaps even look toward the surrogate for payment: for failure to comply with her contractual obligations to obtain the abortion she agreed under certain contingencies or on demand of the commissioning parties. The federal court system would then get to sort out the choice-of-law and enforceability-of-contract issues and any defenses that might be asserted.
Since the born child itself a Texan and is already under the jurisdiction of a Texas district court under the Texas Family Code and UCCJEA, it would make sense for the Texas Supreme Court to weigh in, rather than letting the issues fester and wait for a certified question from a Circuit Court of Appeals perhaps. Possibly years down the road.
Alas, the SCOTX is prone to letting important jurisprudential issues fester, or “percolate” in other courts, which is the preferred euphemism for inaction and merits-avoidance at the highest echelon of the state judicial hierarchy.
But inaction amounts to a policy too. Texas may become a mecca of sorts for birth tourism and it will provide opportunity for Texas attorneys to showcase their skills in high-stakes interjurisdictional litigation.