What we learned at Tuesday’s tense, tearful Dallas hearing over Alaska-California surrogacy battle

From KERA News:

A Dallas judge will decide which of the parties in a high-profile, multistate parentage case can make medical decisions for a newborn baby boy with a serious heart defect: his genetic parents, or the surrogate that gave birth to him.

Dallas County District Judge Ashley Wysocki heard arguments from attorneys on each side Tuesday, as well as testimony from the child’s genetic mother, Nausheen Gilkar of Los Angeles, and surrogate McKenna West of Anchorage, Alaska.

Wysocki then extended for 14 days a temporary restraining order preventing West from seeing or making medical decisions for the child while her ultimate ruling is pending. She’s expected to make her decision within the next two weeks while the TRO remains in place.

Gilkar, her husband Omar Ahmed and their attorneys say the baby’s legal name is Rumi Ali Ahmed, while West and her legal team call him Baby Gabriel.

Tuesday marked the first time Gilkar spoke about the case publicly. Both women’s testimonies filled in the finer details of a complicated narrative playing out in three different states in a test of abortion, surrogacy, parentage and child custody laws.

Among the revelations was that West withheld medical records from the couple. Gilkar also said West did not inform them of her move to Texas ahead of time. She called the surrogate “unstable” and said West was trying to take Rumi from them.

“She has no right,” Gilkar said through tears. “She’s making us run from doctor to doctor, state to state with our baby. She’s trying to take him.”

Meanwhile, after some back and forth between each side’s attorneys and hesitation from West, the surrogate at one point said she would indeed drop her parentage and custody claims — but later said she would continue fighting.

“He is here and he has a birthday because of the fight I put up,” West said.

Genetic mom speaks

Gilkar picked the name for her unborn son on her birthday, March 16, about five months before he would be born, she testified. The 43-year-old said she and her husband had been through eight rounds of in vitro fertilization in an attempt to conceive.

Then her body “gave up,” she said, and she had to have a hysterectomy. Surrogacy became her and Ahmed’s only shot at having children of their own.

A Connecticut-based surrogacy company connected Gilkar and Ahmed with West a little over a year ago. As part of the surrogacy contract she signed, West — who has two other young children of her own — agreed to get an abortion if doctors detected a fetal abnormality and if the intended parents requested she terminate the pregnancy.

The embryo transfer took place at the same facility Gilkar received IVF treatment, and she and West were holding hands during the procedure, Gilkar said.

West received medical care in California during her pregnancy and sometimes stayed at Gilkar and Ahmed’s home, Gilkar testified. Then on April 17, when West was about 20 weeks pregnant, the fetus was diagnosed with hypoplastic left heart syndrome.

Gilkar said on the witness stand — after first denying it during cross-examination — that she and her husband requested West get an abortion.

But Gilkar denied refusing care for the child once he was born. She and Ahmed retained a medical team specializing in pediatric cardiology that can care for Rumi in California, she said.

Gilkar testified she learned of what’s called the Norwood procedure — a type of newborn open-heart surgery — after Rumi was born. The couple immediately agreed to have it done upon learning Rumi was a candidate, she said.

Following the procedure, Gilkar said Rumi is struggling to breathe and has received a blood transfusion.

Gilkar testified she and her husband were committed to pursuing the additional surgeries Rumi needs following the Norwood procedure, namely the Glenn and Fontan procedures, both also open-heart surgeries.

“We’ve never wanted anything more than this baby,” Gilkar said.

West’s attorney Jeff Domen pressed Gilkar on whether she would trust someone with her child who wanted him dead — referring to the couple’s choice to seek an abortion. Gilkar said she didn’t know how to answer the question.

He also asked whether she’d prefer Rumi alive and raised by someone else or dead. West has said she would adopt the child.

Gilkar said that wasn’t West’s decision to make.

“It’s all about my son,” she said. “It’s all about my son getting the care he needs.”

West’s account

West, 28, acknowledged she is not Rumi’s genetic parent — but testified she wanted to give him a chance at life.

West said she had felt Rumi start to move in her womb beginning 16 or 17 weeks into the pregnancy. She started researching potential treatments for the child the same day she, Ahmed and Gilkar received the diagnosis. But over the weekend following the diagnosis, West said, the couple decided to terminate the pregnancy.

West said she started bringing up hospitals in Texas days after the diagnosis. She chose Texas, she said, because she has friends in the state that she could stay with to alleviate the cost for Ahmed and Gilkar.

But West got a phone call from someone at the surrogacy agency informing her of the couple’s decision. West scheduled at least two abortion appointments — one in Seattle, another in California — and canceled both because she said she couldn’t go through with the procedure. The idea was “terrifying,” said West, who cried briefly during her testimony.

“I knew that this baby, despite the diagnosis, had a great chance at survival and a great chance at living a long, meaningful life,” West testified.

After that, she said the couple’s demands increased. West alleged Ahmed and Gilkar’s lawyer and her own former lawyer sent her letters threatening her with liabilities she could face if she didn’t schedule the abortion. They offered to pay her another month if she rescheduled the procedure.

West confirmed she withheld medical documents from the couple. After West moved to Texas July 15, she said Ahmed and Gilkar wanted her to leave and go to California to deliver.

A friend put West in contact with the anti-abortion group Live Action. Among her attorneys are members of the anti-abortion Christian legal group Alliance Defending Freedom.

West said last she checked, a friend had raised about $128,000 through an online fundraiser titled “Help McKenna Fight for Baby Gabriel’s Life” — using the name West chose for the baby. The money is meant to alleviate her legal fees and medical bills.

West wrote in a New York Post op-ed last week the genetic parents’ commitment to providing life-saving care for the child was “all it would take to end this.”

But despite Gilkar’s testimony, West said she doesn’t trust the couple will continue seeking medical care — because Gilkar said she doesn’t regret wanting West to get an abortion.

The California couple’s attorney Lee Budner asked West why the couple couldn’t change their minds about the abortion if she did.

“I don’t know that they have,” West responded.

Legal arguments

A decision in the case comes down to whether West has the legal standing to make her custody claims and whether the surrogacy agreement and the June 22 California order establishing Gilkar and Ahmed as Rumi’s legal parents are valid in Texas.

But aside from the legal arguments, neither side hesitated to lean into the abortion debate central to the case.

Domen, West’s attorney, said Texas family law is clear: Because West gave birth, West is Rumi’s mother. An exception exists for surrogacy, but Domen argued the surrogacy contract at issue wasn’t validated in Texas, therefore the exception doesn’t apply.

He also argued because the child was born in Texas, only Texas has jurisdiction over the custody issue.

“(West) didn’t want to raise a child. She entered into a contract to have a child and then give it away,” Domen said. “But when she heard that the choice was to murder the child, she made a decision — not one that any of us would have wanted to make.”

Budner argued the case is a matter of parentage, not child custody, and a California judge already deemed Gilkar and Ahmed as Rumi’s parents, expressly excluding West from parental authority. The U.S. Constitution requires “full faith and credit” be given to the California order, Budner said.

Budner accused West of looking for the most favorable jurisdiction to bring her claims and relitigate issues decided in both Alaska and California.

“What they want to do is rewrite the Texas Family Code, rewrite the Constitution, eradicate surrogacy, period,” Budner said. “And they’re asking this court to do that.”

An attorney for Children’s Health, which has been involved in Rumi’s care, told the court the hospital needs clarity on how to proceed with care in light of court orders requiring life-saving care regardless of his genetic parents’ decisions.

Susan Duesler, the court-appointed attorney for Rumi, said she was narrowly focused on the best interests of the child. While she said both sides have been cooperative, Duesler rebuked West for writing an op-ed and publicizing the case.

The attorney filed a successful motion to seal the case proceedings.

“The same actions involved in the three states’ cases could have been done privately and could have occurred without me in it,” she said. “Without press releases, without podcasts, without hundreds of thousands of public comments from people who do not have all the facts in this case and who will never meet Rumi.”

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