Two hospitals in Texas have been ordered to provide lifesaving care for a soon-to-be-born baby at the center of an interstate surrogacy dispute.
State Attorney General Ken Paxton’s office announced in an Aug. 11 press release that UT Southwestern Medical Center and Children’s Medical Center of Dallas were legally obligated to care for Gabriel, a baby due to be born on Sept. 2 to surrogate mother McKenna West. A Texas district court had earlier ruled that the hospitals would be required to care for the baby.
In an earlier letter to the hospitals on Aug. 10, Paxton said Gabriel had been diagnosed with hypoplastic left heart syndrome and that his “intended parents” said they would seek to “refuse consent” to an operation.
The parents, identified in court documents as Nausheen Gilkar and Omar Ahmed, “may seek to move the child to California so that treatment can be withheld there,” the letter said.
West reportedly traveled to Texas from Alaska after Gilkar and Ahmed urged her to seek an abortion after the diagnosis of the syndrome, according to news reports. She allegedly offered to take full responsibility of the baby, though the baby’s biological parents reportedly refused.
In an emergency order dated Aug. 11, the Dallas district court ordered that upon birth the baby would be provided with “medically indicated stabilizing and life-sustaining care” at either of the hospitals.
The court also barred the child’s removal from either the hospitals or the state of Texas except as necessary for his medical care.
Paxton hailed the court’s order as “the right decision.”
“My office utilized every tool at our disposal to protect life, and we will not back down in continuing to support baby Gabriel’s well-being,” the prosecutor said. “Every child in our state deserves to be cared for and protected, and that’s exactly what I’ll fight for.”
‘A problem for the 13th Amendment’
Anthony Sirven, a Catholic Florida-based attorney who has published on the subject of surrogacy, told EWTN News that this case and others like it portend “whether we’re going to decide custody based on a contract.”
“The [surrogacy] contract is about a human life,” he said. “So the question is: How do you enforce a contract over a human life? The answer should be ‘you can’t’ because of the 13th and 14th Amendments.” The 13th Amendment outlawed slavery in the United States while the 14th Amendment enshrined equal protection and due process in the U.S. Constitution.
Early litigation surrounding in vitro fertilization and surrogacy had to walk a careful line, Sirven said, as Roe v. Wade had asserted that unborn children are not human persons, putting their legal status into uncertainty. Courts ultimately settled around the idea that embryos are “a special kind of property,” he said, allowing courts to enforce contract-based rights over them.
But the 2022 Dobbs v. Jackson Women’s Health Organization decision “overturned Roe and, arguably, every case that relied on Roe to recognize a property interest in human life,” he said, throwing years of precedent into uncertainty.
On the Texas case, “we’ll see what happens,” Sirven said. “If this child is born and given lifesaving care, the next question will become ‘Who’s going to take custody of him?’ If the ‘intended parents’ seek custody or other rights under a contract, and the court rules in their favor on the basis of a contract, then that’s a problem under both the 13th and 14th Amendments.”
Stefano Gennarini, the vice president for legal studies at the New York-based Center for Family and Human Rights, told EWTN News that “most lawyers” would agree it is “hard to predict a case like this.”
Gennarini said he was not an expert in either Texas or Alaskan family law, but he said international legal conventions — specifically the Universal Declaration of Human Rights — affirms “the human right of mothers and their children to receive special protections during pregnancy and after birth.”
“Allowing a third party to contractually decide what kind of treatment a surrogate mother can seek eviscerates these international protections,” he said. “Overall, this case illustrates how dangerous any form of surrogacy is.”
The practice of surrogacy, he said, “legally deconstructs the natural family as recognized in international law,” leading to what he described as “inhuman scenarios” such as that in Texas.
The order handed down in Texas takes effect on the event of Gabriel’s birth and “remains in effect until further order,” the court said.