A Surrogate’s Fight for Parental Rights in Dallas Could Discourage Surrogacy Use

by Katlyn Ma, The Texas Tribune

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. West’s attorney, who did not provide a comment for this story, said last week that they are still pursuing custody even though the child has received medical care per West’s wishes.

“I don't understand how they can be trusted,” said Lila Rose, founder of Live Action, an anti-abortion group working with West. She confirmed to The Texas Tribune on Tuesday that West is still pursuing custody. “I think their actions so far have shown that they do not have the best interests of this baby at heart.”

Budner disputes Rose’s characterization of his clients, telling the Tribune that they immediately agreed to surgery for Rumi who has and will have to undergo multiple surgeries in the first several years of his life to address the underdeveloped heart he was born with. 

“Ms. West continues to assert baseless claims for custody of Rumi, in violation of multiple courts orders out of both Alaska and California,” Budner said. “We look forward to quickly defeating those claims as Rumi’s parents continue to focus on his health and safety above all else.”

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. 

Surrogacy is an exploitative practice that reduces women to their ability to bear children and treats children as commodities subject to negotiation, said Texas Right to Life president John Seago, who supports banning commercial surrogacy. Paying for or creating a contract around a pregnancy can turn a child into something purchased, some conservatives say. 

“I think this case really highlights the concerns that pro-lifers and conservatives have been raising about surrogacy, especially about commercial surrogacy,” Seago said.

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.

Allowing surrogates to claim parental rights

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. 

Pregnancy termination clauses

When West signed a gestational surrogacy agreement, she agreed to an abortion clause commonly found in surrogacy agreements, Ahmed and Gilkar’s attorney said in Dallas court filings. 

The clause typically clarifies situations where an abortion could be requested – if the pregnancy threatens the surrogate’s health or prenatal testing identifies a severe fetal condition that is expected to be fatal or require extensive medical care after birth. The clause might allow the intended parents to ask for an abortion or a surrogate to ask for one. In Texas, abortion clauses were sometimes  included in surrogacy agreements until abortions were banned statewide in 2022, said Andresen.

An abortion clause does not mean that intended parents can force a surrogate to undergo an abortion, said Rebouché. But, it could establish financial consequences if either party does not follow the surrogacy agreement. For example, the biological parents can take the surrogate to court to pay financial penalties for refusing the terms of the surrogacy contract, they could end compensation for the surrogate, or stop paying for pregnancy-related expenses.

West is challenging the validity of the agreement in Texas court by saying that judicially enforcing the abortion clause or penalizing her financially for refusing the abortion violates her fundamental right to “privacy and bodily autonomy,” according to Dallas court records. 

“No woman should be forced to kill the baby she is carrying,” said Alliance Defending Freedom in a statement released last week.

Experts say the dispute is unusual because courts have rarely been asked to enforce financial penalties when a surrogate declines an intended parents’ requested abortion. This could provide a precedent for others to challenge such contracts with similar language.

Surrogacy laws can differ from state to state, but where the surrogate physically is will ultimately dictate which state’s laws are triggered, said Marla Neufeld, a family attorney with Florida-based Greenspoon Marder LLP. This is why West sought out Texas where laws are friendlier to her circumstances. 

“If the delivery doesn't occur in the state where it's anticipated, with the parentage process that's been planned for before anyone was pregnant, it creates a lot of confusion and legal challenges,” Neufeld said.

Some conservatives see surrogacy as an inherently coercive practice and the abortion clause is an example of one of the ways the agreement can violate a woman’s rights as well as promote a pro-abortion framework. They fear that surrogacy contracts can be used as a way to control decision making for people around abortion, said Rebouché. 

Texas Right to Life and Live Action want to see an end to surrogacy but at the very least they want to see abortion clauses eliminated from surrogacy contracts. They say this clause is inherently pro-abortion and only works to encourage designer babies. Conservative advocates say no contract should be allowed to violate a surrogate’s decision about her body and violate her constitutional rights.

“No legal contract can cancel the value of a woman who is the mother opposing the abortion of her child,” Seago said. Just because something is in a contract does not make it ethical, and definitely doesn't make it something the state of Texas should enforce.”

Andresen said removing the abortion clause could hurt surrogates, leaving them financially on the hook for medical complications related to the surrogacy. 

Banning commercial surrogacy

No matter the outcome in West’s case, experts say that the fight to limit and eventually ban commercial surrogacy will continue with conservative groups in the state legislative session that starts in January. 

“If the intermediate appellate court or Texas Supreme Court doesn’t take (West’s case) up, we might well see it pop up as a bill in the next legislative session,” Andresen said.

West’s lawyers have said they will take the case to national courts if needed to appeal the California decision that sided with the intended parents and gave them parental rights. The next hearing in Dallas county court is scheduled for Aug. 25.

Andresen fears that if Texas restricts surrogacy, some families will have to give up their dreams of having a child that is biologically theirs.  In 2025, Texas was home to 657 births from surrogacy, according to the Texas Department of State Health Services. 

“Hard cases make bad law,” Andresen said, quoting a common legal principle.

Wealthier intended parents could pursue arrangements in other states, Andresen said, while middle-class families struggling with infertility would be hurting the most. 

“If this goes up to the Texas Supreme Court and they somehow modify Texas's family code, it's likely to make surrogacy more cumbersome in some way and less accessible to middle class people,” Andresen said.

This article first appeared on The Texas Tribune.