A couple from California which we can only identify at AB and CD decide they would like to have a child born through a surrogate mother. Through a Connecticut based surrogacy service, they are connected with an Alaskan nurse and mother of two named McKenna West. The three met on Zoom and decided to form a contract for Ms. West to carry the child to an early September 2026 birth. The contract they signed states that should a dispute arise the law of Alaska would apply.
At 20 weeks Ms. West submitted to an ultrasound that was not good. There was no blood flowing through the left side of the baby’s heart; a condition termed HLHS. This defect can’t be treated before birth but there are procedures available once the child is delivered. It takes multiple surgeries and outcomes are not certain. The child could die, need a heart transplant or have lifelong disabilities.
News reports indicate this caused a split between the expectant parents. One seemed inclined to allow the pregnancy to progress while the other suggested it was best to terminate the pregnancy. The couple decided to terminate. The surrogate found that physicians in Alaska refused to do that because of the stage of the pregnancy. The couple then proposed an abortion in Washington state. Meanwhile the surrogate became committed to carrying the child to term. She proposed that her brother would be prepared to adopt.
The surrogacy contract itself said that the contracting couple could demand an abortion if there was an “anomaly.” They sued in California not to enforce that provision but to demand that West give birth in Caifornia. There are concerns they might not consent to the HLHS emergency surgery or that they would not address complications implicit in the surgical process.
Ms. West relocated to Texas where surgical facilities able to treat HLHS are located and where the law suggests that a birth mother’s rights are indefeasible until a court terminates them.
West brought suit in Alaska asking it to take jurisdiction over the controversy. The state joined that suit but the Alaska courts ruled in July that this was an issue better decided in California as Alaska has no facility to accommodate HLHS surgery. At the same time it held that courts cannot order Ms. West to leave Alaska to bear a child in some other state.
This prompted West to file in Texas and seek an order for the child to receive any necessary treatment she (West) would request. The Texas Court has imposed that order with a full hearing to take place later in August. Whether AB/CD (the California expectant parents) have any jurisdictional contacts with Texas seems doubtful.
This is a jurisdictional fight on steroids, and the life of the unborn child could hang in the balance. The Uniform Child Custody Jurisdiction and Enforcement Act defines a child as an “individual” who is under age 18. In recent years many states have adopted laws holding that “conception” creates a child who has rights worthy of protection. The UCCJEA builds jurisdiction around “residence” in a state for six or more months. We don’t know in what state this IVF “child” was conceived. It could have been anywhere. The child seems to have been resident inside Ms. West while Ms. West was living in Alaska until a few weeks ago. Now, Ms. West seems to be resident in Texas although her reason for being there seems driven by medical facilities and protective laws rather than any desire to live there. Meanwhile the Texas Attorney General is treating the litigation as a form of rescue. He’s even ordered a hospital to provide the surgery if the child is born before the hearing.
Imbedded in all of this are some very important facts which won’t be known until a baby appears. The Texas argument could be summarized as: “This couple suggested abortion. Abortion is inimical to Texas. The couple can’t abort the child but, once born, they could withhold consent to the emergency surgery to save the child’s life.” The California couple has the ability to respond: “Our position has changed. We contracted for this child and we are entitled to secure a delivery, both literal and figurative. Then and there, we will confer with physicians regarding the medical options and risks and either consent to this emergency procedure or allow our child to pass in peace.”
A lot of this may turn on where the birth takes place. The general standard in almost all medical emergencies is to do all that can be done to sustain life. This responsibility rests on both parents and health care providers. But there are exceptions to this rule where the procedure would be futile and/or cause the afflicted child to suffer despite little or no prospect of survival or recovery. https://publications.aap.org/pediatrics/article/140/3/e20171905/38281/Guidance-on-Forgoing-Life-Sustaining-Medical?autologincheck=redirected. Ironically, it appears that had the child been born in Alaska, the facilities and expertise to perform HLHS surgery would not exist. Where the surgery is available it has a high success rate in the near term but there seems to be a high mortality rate in the in the first year. Survival of Children With Hypoplastic Left Heart Syndrome – PMC . If this child is born and survives the surgery, any caretakers, whether parents or surrogates, will endure a long and difficult medical journey. From what we have read, Ms. West has suggested her brother might be willing to take that burden. If the child is born in California, there would likely be facilities to provide the surgery, but the surgical outcome is uncertain and presumably, AB/CD would be the people consulted about how far treatment should proceed. If the child is born in Texas, the facilities are available but the birth mother (Ms. West) does not seem prepared to parent a third child. We should add that conclusion is from inference and not premised on any statement we have found in the reporting.
We have an unborn child who is already in extermis. We have three state judicial systems acting but it is entirely unclear which, if any, has jurisdiction over the fetus.
As I post this, Ms. West has given birth today (8/12/26). The Texas Court has held that AB/CD are responsible for the infant’s care based on the surrogacy contract. We shall follow up if there are further legal proceedings which clarify rights and duties in this tragic setting.
An update from 8/13/26: The next hearing is scheduled for August 25. That may focus on what standing the State of Texas has in this controversy.
In surrogacy controversy, court documents give new detail on contract, medical plans for baby
August 25 update: The first surgery was on Monday August 17. Reports today indicate the baby remains in critical condition as of today. There is no indication that the judicial proceedings scheduled for today went forward.