Across Texas, California and Alaska, a high-stakes case surrounding surrogacy has been unfolding.
If you’re not caught up, I’ll give a brief summary. Last August, Californian couple Omar Ahmed and Nausheen Gilkar elected to enter a surrogacy contract with Alaskan nurse McKenna West. West would carry their child for a base payment of $60,000, but the contract came with certain stipulations—most notably, that West would terminate the pregnancy if certain fetal defects were discovered.
At around 20 weeks, it was discovered that the fetus had hypoplastic left heart syndrome (HLHS), where the left side of the heart is underdeveloped and can not pump blood properly. Outcomes for this condition are grim: with numerous surgeries, including shortly after birth, babies have around a 60-70% chance of surviving their first year of life. The families of babies with HLHS can expect to spend around two total months of their child’s first year in the hospital. Babies with HLHS are more likely to have lifelong complications, and many will require a heart transplant if the defect is complex enough.
After discovering this diagnosis, Ahmed and Gilkar decided to terminate the pregnancy after discussions with doctors about the outcomes anticipated of a baby with HLHS. While West initially agreed to terminate, she soon changed her mind. Ahmed and Gilkar then began to make plans for the baby’s delivery and immediate medical care in Los Angeles. However, West then allegedly cut contact with the couple and flew from Alaska to Texas to deliver.
Why Texas? Well, in Texas, abortion access is severely restricted in almost all cases, with a narrow exception for cases where the mother’s life is at risk (but no exceptions for cases where the fetus has a fatal condition). More crucially, under Texas law, the individual who gives birth is recognized as the legal mother.Â
West delivered the baby, named Rumi by his parents, in a Dallas hospital on August 12. Rumi has already undergone a complex open-heart surgery, and is now allegedly in critical condition following the procedure. Ahmed and Gilkar have been staying in Dallas with the baby and have also filed a temporary restraining order against West.
What started as a surrogacy contract has devolved into a legal frenzy over parentage, conservatorship and, more broadly, the ethics of commercial surrogacy. West and her legal team believe that due to Texan law where she delivered Rumi (whom she and her legal team refer to as Gabriel), she should have the power to make his medical decisions. California law recognized Ahmed and Gilkar as Rumi’s legal parents before birth, so as of now, they have sole authority over his medical care, but West—backed by anti-abortion groups and Republican attorney general Ken Paxton—intends to continue fighting for custody of Rumi in courts.
To pivot: commercial surrogacy is a contract in which the surrogate mother receives monetary compensation beyond expense reimbursement. This differs from altruistic surrogacy, where the surrogate is only reimbursed for medical expenses, more common when friends or family members elect to carry for each other. While commercial surrogacy is legal in parts of the United States, other countries have restrictions on the practice or have banned it entirely. Canada and the United Kingdom, for instance, have full federal bans on paying a surrogate for carrying; Australia goes as far as to criminalize international commercial surrogacy in certain states.Â
But why? Millions of people every day are paid for services they provide to others. And pregnancy is hard work—it incurs medical risk, time and physical labor. At first glance, it may seem more ethical to pay for someone to do that work rather than expecting it for free.
In theory, this is true. But in reality, there are concerns with paying to borrow a woman’s body for nine months. The West case, and the social media frenzy that has broken out in response, demonstrate this.Â
Supporters of Rumi’s biological parents believe that the parents should have been able to exert stronger control over West, including forbidding her from traveling during the course of her pregnancy —a provision that would have prevented her from reaching Texas. But a woman’s bodily autonomy does not, and should not, get stripped from her when she becomes pregnant, no matter the biology of the child she’s carrying. Signing a surrogacy contract should not mean surrendering all independence and control over your body.
But then—to be blunt—what are the parents paying for? Are you paying for someone to do the labor of childbearing for you, or are you paying for the child itself?Â
Surrogacy critics argue putting a price tag on an infant is morally wrong; supporters believe you’re paying for the work involved in getting the pregnancy to the finish line. In any other “work contract,” money exchanging hands would indicate that the payer can exact enforceable expectations about how the process goes, but pregnancy simply doesn’t work that way—there are legal and ethical limits to what a payer can expect. If you’re paying for the baby, then realistically, the surrogate should surrender their medical decisions to the intended parents. If you’re paying for the pregnancy itself, then the surrogate should have full control. The reality is that these commercial surrogacy contracts operate in the murky in-between. Sometimes it works, and a lot of times, it doesn’t.
Even if you’re just paying for the labor of pregnancy, money can exert its own pressure. Surrogates are not necessarily always impoverished women with no other options, as they are often portrayed. But $60,000 is a life-changing amount of money for the majority of Americans. If a woman needs to pay off debt, support her kids, or simply have extra financial security, a surrogacy contract can be incredibly persuasive.
This doesn’t necessarily mean the decision to be a surrogate is inherently coercive, because adults routinely make hard decisions when they need or want money. But pregnancy, again, is not an ordinary service. It’s a nearly year-long commitment with massive medical risks and long-term physical and mental consequences. The line between financial incentive and financial pressure becomes blurred.
But if a woman consents, does that settle the ethical debate? Not necessarily; though we generally accept that adults will do risky things for money, the hard legal limit has generally been selling your body. Prostitution is illegal, as is selling your own organs. So, should we consider pregnancy to be closer to ordinary paid labor, or to a market that’s taboo due to risk of exploitation?
For any of these debates, there’s no clear-cut answer; there’s a reason the ethical considerations of commercial surrogacy have been persistent for decades. But the McKenna West case shows how dangerous this ambiguity can be when contracts, autonomy and parenthood collide. If commercial surrogacy continues to exist in the United States, stricter guidelines need to be put in place to decide where surrogate autonomy ends and intended parents’ authority begins.Â
In the meantime, the human cost of this slow crawl to legal certainty is hard to ignore. Rumi has spent the first few weeks of his life in critical condition and at the center of a political and legal frenzy surrounding his parentage—additional suffering that would not be occurring if the legality of commercial surrogacy contracts were clearer.