From Slate Magazine · Evelyn Tenenbaum · · 3m
Supreme Court must reject Texas surrogacy case
A surrogate's bodily autonomy doesn't make her the legal parent of a child born from another couple's genetic material.
In brief
A surrogate's bodily autonomy doesn't make her the legal parent of a child born from another couple's genetic material. Courts can protect a surrogate's right to control her own pregnancy while preserving the intended parents' legal rights to their biological child after birth. Originally reported by Slate Magazine.
Surrogate refuses to end pregnancy
McKenna West agreed to carry a genetic child for Nausheen Gilkar and Omar Ahmed. When the fetus showed a severe heart defect at 20 weeks, the parents asked her to terminate. She refused and moved to Texas.
Baby born with critical heart condition
The baby was born on August 12 and underwent complex heart surgery mid-August. The child remains in critical condition. West now seeks custody with support from anti-abortion groups.
Case reaches the Supreme Court
West asked the Supreme Court to strip the parents of their right to control the child's medical care while she pursues custody in Texas courts.
Two competing principles collide
The case pits a woman's right to control her own body during pregnancy against the legal and biological parents' rights to their child after birth.
History repeats in surrogacy
In 2011, surrogate Crystal Kelley refused to terminate a pregnancy despite agreeing to do so. She fled to Michigan, delivered the baby, and had it adopted by another couple. The child died at age 8.
Surrogates face real physical risks
Surrogates play an extraordinary role in fetal development and assume all physical risks of pregnancy. Some feminists argue women cannot truly consent to surrogacy because they cannot predict the bond they may develop.
New York found a balanced solution
In 2020, New York passed the Child-Parent Security Act with the nation's first Surrogates' Bill of Rights. It protects surrogates' bodily autonomy and their right to make all healthcare decisions, including abortion.
The law draws a crucial line
New York's law prevents surrogates from using their own egg to create the embryo. This means the surrogate cannot be the biological mother. The law also requires the surrogate to surrender the child to intended parents at birth.
West's argument threatens parental rights
West claims that parents who ask a surrogate to terminate a pregnancy could lose their parental rights simply by making that request, even when the surrogate explicitly agreed to it.
Parents changed course after refusal
After West refused to terminate, Gilkar and Ahmed told the Texas court they intended to assume custody and provide medical care for their child. They agreed to surgeries shortly after birth.
Abortion request shouldn't erase parenthood
Courts must not create a rule where a parent's request for abortion during pregnancy later severs their relationship with the child after birth. That would turn reproductive decisions into a rule about parenthood itself.
The Supreme Court should decline
A surrogate's bodily autonomy does not automatically make her the child's parent. The law can recognize both a woman's authority over her pregnancy and the intended parents' legal rights to their biological child.
The bottom line
Courts can protect a surrogate's right to control her own pregnancy while preserving the intended parents' legal rights to their biological child after birth.
