The Supreme Court Is Being Asked to Intervene in a Texas Surrogacy Battle. The Justices Must Say No.

A surrogacy case that has attracted national attention is now before the Supreme Court , and it raises a question that goes to the heart of what it means to be a parent.

McKenna West entered into a surrogacy contract in which she agreed to carry and deliver the genetic child of Nausheen Gilkar and Omar Ahmed. The contract explicitly provided that she would terminate the pregnancy if the fetus had a serious birth defect and the intended parents requested an abortion. About 20 weeks into the pregnancy, the parents learned that the fetus had a severe heart defect. They asked West to terminate the pregnancy. She refused and moved from Alaska to Texas, where the baby was born. After undergoing complex heart surgery in mid-August, the baby remains in critical condition. West, supported by anti-abortion advocacy groups, is now seeking custody of the child. Last week, she asked the Supreme Court to take away the parents’ right to control the medical care of the child while she pursues her request for custody in the Texas courts.

The case presents a profound conflict between two important principles: a woman’s right to control what happens to her own body during pregnancy and the rights of the people who are legally and biologically the child’s parents once that child is born.

This is not the first case in which a surrogate has refused to terminate a pregnancy after the intended parents learned that the fetus had serious birth defects. In October 2011, Crystal Kelley signed a contract to bear a baby for a couple in Connecticut, where she also lived. She agreed to terminate the pregnancy if a serious birth defect were discovered and the parents requested an abortion. When she was five months pregnant, ultrasound examinations revealed that the fetus had a cleft palate, a brain cyst, and heart defects. The intended parents asked Kelley to terminate the pregnancy and offered her $10,000. Despite her agreement, Kelley fled to Michigan, where surrogacy contracts were unenforceable. She delivered the baby and was listed as the mother on the birth certificate, even though she had no genetic connection to the child. With Kelley’s approval, the baby was adopted by Rene and Thomas Harrell, who lived in Massachusetts. Although the child had significant health problems, she remained with her adoptive parents until she died at 8 years old.

These cases expose a difficult tension at the heart of surrogacy. A surrogate plays an extraordinary role in a child’s development and assumes the physical risks of pregnancy. In addition, some feminists argue that women cannot voluntarily enter into surrogacy agreements because they cannot know in advance the bond they may develop with the fetus during pregnancy. But these aspects of surrogacy do not make the surrogate the child’s parent. These cases also raise difficult questions about the intended parents’ rights to make decisions concerning their biological child before birth—and about whether a contract governing those decisions should be enforceable.

In 2020 New York responded to these and other concerns by passing the Child-Parent Security Act , which included the nation’s first Surrogates’ Bill of Rights.