Sued for Refusing an Abortion: The Surrogacy Clause Courts Won't Enforce

Background

Los Angeles residents Nausheen Gilkar and Omar Ahmed entered a surrogacy agreement on Aug. 29, 2025, with McKenna West, a nurse then living in Anchorage, Alaska. The parties were matched through Worldwide Surrogacy Specialists, a Connecticut-based agency. Gilkar testified in August that she and Ahmed had been through eight rounds of in vitro fertilization before a hysterectomy left surrogacy as their only path to a biological child.

At roughly 20 weeks, the fetus was diagnosed with hypoplastic left heart syndrome, a condition in which the left side of the heart is underdeveloped and cannot pump blood normally. Treatment typically involves three staged surgeries, the first shortly after birth. The couple asked West to terminate. She refused, traveled to Texas, and gave birth on Aug. 12 in Dallas to a boy she calls Gabriel and his parents call Rumi. He has since undergone the first of those surgeries.

According to West’s court filings, the agreement included her consent to terminate in the event of a fetal abnormality if the intended parents requested it, and a breach would end her compensation, obligate her to repay what she had received, and expose her to further damages. Her attorneys say she was warned that continuing the pregnancy could cost her more than $250,000, and that she offered to raise the child herself or arrange an adoption while releasing the couple from further financial obligation. The agreement itself has not been made public.

The couple have not disputed that termination was discussed. At an Aug. 25 hearing in Dallas, they acknowledged considering it after the diagnosis but said they ultimately decided the pregnancy should proceed, and that the dispute escalated when they tried to bring West to California to meet with specialists and plan the child’s care.

The Clause Nobody Can Enforce

In simple terms: a contract can say almost anything, but a court will only order the parts it is willing to compel.

No American court will order a woman to have an abortion. California’s own Supreme Court flagged the problem more than thirty years ago in Johnson v. Calvert, noting that the contract before it acknowledged a pregnant woman’s absolute right to abort or not abort, and that any promise to the contrary is unenforceable. Termination provisions remain common in surrogacy agreements anyway, typically spelling out when intended parents may request one.

What remains is money. An intended parent who cannot compel performance can still sue for breach and ask for damages — which is precisely the posture here. The abortion clause did not produce an abortion. It produced a six-figure claim.

That distinction matters for anyone reading the headline. The couple are not asking a court to undo anything. They are asking it to price a refusal.

Where the Case Actually Turned

The custody fight was decided on ground that has little to do with abortion at all.

The agreement’s forum-selection clause specified Alaska law and Alaska courts, and the agreement originally contemplated a birth in Alaska. The diagnosis changed that: according to a State of Alaska filing, no hospital in the state is prepared to treat hypoplastic left heart syndrome at birth. The Alaska court then deferred the dispute to California, where the birth was by then expected to take place.

A Los Angeles court established Gilkar and Ahmed as the child’s legal parents. West entered a special appearance to contest California’s jurisdiction, citing the Alaska forum clause; the court concluded her filings amounted to consent to its authority. In Texas, West argued that parentage can only be decided after birth under Texas law and that the agreement was unenforceable there because no Texas court had validated it. In early September, Dallas County District Judge Ashley Wysocki instead gave the California judgment full faith and credit and dismissed West from the case. The case is sealed.

On Sept. 17, the Texas Supreme Court denied West’s bid to keep the child in Texas, citing uncontroverted medical testimony that an ICU-to-ICU transfer was in his best interest and clearing the way for his parents to move him to Los Angeles.

West, represented by Alliance Defending Freedom and First & Fourteenth PLLC, is now before Circuit Justice Elena Kagan seeking an emergency stay, arguing California violated federal due process by treating her jurisdictional defense as consent. The docket in M.W. v. Superior Court of California (26A325) shows the parents’ opposition filed Sept. 18. No ruling has issued.

Four courts in three states have now addressed the matter. None of them decided anything about abortion.

The Politics Around It

Texas Attorney General Ken Paxton intervened the day before the birth, notifying UT Southwestern Medical Center and Children’s Medical Center of Dallas of their obligation to provide care, and obtained an emergency order requiring treatment and barring the child’s removal from Texas. “Baby Gabriel deserves a chance at life,” he said. Paxton, the Republican nominee for U.S. Senate, filed a notice of nonsuit on Aug. 19, saying his office had achieved its goal.

The couple’s attorney, Lee Budner, has accused West and Paxton of turning a family tragedy into political theater. Live Action, the anti-abortion group working with West, opposes surrogacy itself; its founder, Lila Rose, told CNN the case shows children being treated as commodities. Mary Ziegler, a law professor at UC Davis, told CNN that few federal standards guide the practice.

The fight has spread. In Texas, the case arrived alongside a Republican grassroots push to change the state’s surrogacy law in next year’s legislative session. At the Supreme Court, Florida and a coalition of other states have filed a brief supporting West. Both sides have amplified the naming dispute — Gabriel or Rumi — as shorthand for their positions.

Analysis

The abortion clause has absorbed nearly all of the public attention, and it is the least legally consequential term in the contract. It could never have produced a termination. Its function was financial: leverage during the pregnancy, a damages theory after it.

The terms that decided the outcome were the quiet ones. Who counts as a legal parent. In which forum. Whether a judgment travels across state lines. The agreement named Alaska, yet even the Alaska court sent the parentage question to California, and Texas enforced California’s answer. The forum-selection clause — the provision written specifically to settle where disputes are heard — did not hold.

Surrogacy in the United States has no comprehensive federal framework. The practice is governed by whichever state laws happen to apply, and this case triggered three at once: Alaska, which has no surrogacy statute; California, whose law is built to enforce these agreements; and Texas, which enforces gestational agreements only if a court validates them in advance. Every party was American. It still took four courts.

A publicly contested case rarely turns on the clause everyone is arguing about. This one did not.

Conclusion

The child is alive and has had the first of the surgeries his condition requires. His legal parents have prevailed in California, Alaska and Texas. His birth mother has no standing in his care and faces a damages claim for the decision that led to his birth. A pending Supreme Court application will determine whether any of that is revisited.

What the case has not produced is clarity about the rules — because there are no national rules to clarify.

Key Takeaways

Gilkar and Ahmed seek at least $100,000 from West for breach after she declined to terminate a pregnancy diagnosed with hypoplastic left heart syndrome at about 20 weeks.
Courts will not order a woman to abort. Johnson v. Calvert noted such promises are unenforceable, leaving damages as the only available remedy.
The custody outcome turned on jurisdiction and full faith and credit, not on the abortion clause. Even the Alaska court named in the contract deferred to California.
Texas courts dismissed West from the case and the Texas Supreme Court rejected her bid to keep the child in state. Her emergency application is pending before Justice Kagan.
Surrogacy has no comprehensive federal framework. Three states’ laws collided in a case where every party was American.