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鈥檚 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鈥檚 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鈥檚 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鈥檚 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 鈥渦nstable鈥� and said West was trying to take Rumi from them.
鈥淪he has no right,鈥� Gilkar said through tears. 鈥淪he鈥檚 making us run from doctor to doctor, state to state with our baby. She鈥檚 trying to take him.鈥�
Meanwhile, after some back and forth between each side鈥檚 attorneys and hesitation from West, the surrogate at one point said she would indeed drop her parentage and custody claims 鈥� but later said she would continue fighting.
鈥淗e is here and he has a birthday because of the fight I put up,鈥� 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 鈥済ave up,鈥� she said, and she had to have a hysterectomy. Surrogacy became her and Ahmed鈥檚 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 鈥� who has two other young children of her own 鈥� 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鈥檚 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 鈥� after first denying it during cross-examination 鈥� 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鈥檚 called the Norwood procedure 鈥� a type of newborn open-heart surgery 鈥� 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 and procedures, both also open-heart surgeries.
鈥淲e鈥檝e never wanted anything more than this baby,鈥� Gilkar said.
West鈥檚 attorney Jeff Domen pressed Gilkar on whether she would trust someone with her child who wanted him dead 鈥� referring to the couple鈥檚 choice to seek an abortion. Gilkar said she didn鈥檛 know how to answer the question.
He also asked whether she鈥檇 prefer Rumi alive and raised by someone else or dead. West has said she would adopt the child.
Gilkar said that wasn鈥檛 West鈥檚 decision to make.
鈥淚t鈥檚 all about my son,鈥� she said. 鈥淚t鈥檚 all about my son getting the care he needs.鈥�
West鈥檚 account
West, 28, acknowledged she is not Rumi鈥檚 genetic parent 鈥� 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鈥檚 decision. West scheduled at least two abortion appointments 鈥� one in Seattle, another in California 鈥� and canceled both because she said she couldn鈥檛 go through with the procedure. The idea was 鈥渢errifying,鈥� said West, who cried briefly during her testimony.
鈥淚 knew that this baby, despite the diagnosis, had a great chance at survival and a great chance at living a long, meaningful life,鈥� West testified.
After that, she said the couple鈥檚 demands increased. West alleged Ahmed and Gilkar鈥檚 lawyer and her own former lawyer sent her letters threatening her with liabilities she could face if she didn鈥檛 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 鈥淗elp McKenna Fight for Baby Gabriel's Life鈥� 鈥� 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鈥� commitment to providing life-saving care for the child was "all it would take to end this.鈥�
But despite Gilkar鈥檚 testimony, West said she doesn鈥檛 trust the couple will continue seeking medical care 鈥� because Gilkar said she doesn鈥檛 regret wanting West to get an abortion.
The California couple鈥檚 attorney Lee Budner asked West why the couple couldn鈥檛 change their minds about the abortion if she did.
鈥淚 don鈥檛 know that they have,鈥� 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鈥檚 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鈥檚 attorney, said Texas family law is clear: Because West gave birth, West is Rumi鈥檚 mother. An exception exists for surrogacy, but Domen argued the surrogacy contract at issue wasn鈥檛 validated in Texas, therefore the exception doesn鈥檛 apply.
He also argued because the child was born in Texas, only Texas has jurisdiction over the custody issue.
鈥�(West) didn鈥檛 want to raise a child. She entered into a contract to have a child and then give it away,鈥� Domen said. 鈥淏ut when she heard that the choice was to murder the child, she made a decision 鈥� not one that any of us would have wanted to make.鈥�
Budner argued the case is a matter of parentage, not child custody, and a California judge already deemed Gilkar and Ahmed as Rumi鈥檚 parents, expressly excluding West from parental authority. The U.S. Constitution requires 鈥渇ull faith and credit鈥� 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.
鈥淲hat they want to do is rewrite the Texas Family Code, rewrite the Constitution, eradicate surrogacy, period,鈥� Budner said. 鈥淎nd they鈥檙e asking this court to do that.鈥�
An attorney for Children鈥檚 Health, which has been involved in Rumi鈥檚 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鈥� 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.
鈥淭he same actions involved in the three states' cases could have been done privately and could have occurred without me in it,鈥� she said. 鈥淲ithout 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.鈥�
Toluwani Osibamowo is 四虎影院鈥檚 law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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