Supreme Court Justice Elena Kagan has declined to intervene in a high-profile, multistate custody battle over a medically fragile infant born with hypoplastic left heart syndrome. The decision leaves intact a California court order granting legal custody to the biological parents, Omar Ahmed and Nausheen Gilkar. The dispute arose after surrogate McKenna West refused the couple's request to abort the fetus following a 20-week diagnosis, leading West to flee to Texas to give birth. While West alleged the couple would withhold care, courts across multiple states have consistently upheld the biological parents' custody rights.
Surrogacy Contract and Abortion Dispute
- ▪McKenna West refused the biological parents' request to abort the pregnancy after a 20-week anatomy scan in April diagnosed the fetus with hypoplastic left heart syndrome.
- ▪In August 2025, California couple Nausheen Gilkar and Omar Ahmed entered into a surrogacy contract with McKenna West, an Alaska nurse, which included a clause permitting the couple to demand an abortion in the event of a fetal abnormality.
Baby's Birth and Medical Condition
- ▪Hypoplastic left heart syndrome is a rare, life-threatening congenital heart defect where the left side of the heart is severely underdeveloped, preventing normal blood flow and requiring multiple childhood surgeries.
- ▪The baby boy, named Rumi by his biological parents and Gabriel by McKenna West, was born on August 12 in Dallas, Texas, with hypoplastic left heart syndrome.
State Court Custody Decisions
- ▪A Texas judge on September 2 dismissed McKenna West's claims for sole conservatorship, and judges in Alaska and Texas deferred to the California court order recognizing Omar Ahmed and Nausheen Gilkar as the legal parents.
- ▪Texas Attorney General Ken Paxton intervened in the custody dispute over baby Rumi to secure a Texas court order requiring a Dallas hospital to provide the newborn with lifesaving medical care, though Paxton subsequently withdrew from the proceedings
- ▪The Texas Supreme Court issued a ruling clearing the way for baby Rumi, born August 12, to be moved from Texas to Los Angeles, California, for medical treatment, stating that sustaining the medically fragile child's life was the paramount concern
Supreme Court Emergency Appeal
- ▪Supreme Court Justice Elena Kagan acted alone, without explanation or referral to the full court, to deny surrogate McKenna West's emergency appeal blocking a California order recognizing biological parents Omar Ahmed and Nausheen Gilkar as legal parents.
- ▪McKenna West's lawyers argued to the Supreme Court that Omar Ahmed and Nausheen Gilkar might place the child, Rumi, in hospice care or halt lifesaving treatment, while the couple's lawyers stated they are committed to providing lifelong medical care
West's Texas legal battle
- ▪A Texas court issued a restraining order blocking McKenna West from seeing the baby, Rumi
- ▪McKenna West traveled from Alaska to Texas to give birth to the baby boy she named Gabriel, seeking to protect him under Texas's restrictive abortion laws and claiming she would likely be recognized as the rightful mother under Texas law
Debatable claims
- ▪Biological parents should retain custody of a surrogate-born child after requesting an abortion
- ▪Surrogacy contracts should not contain legally enforceable abortion clauses
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