The Texas Surrogacy Case: How Careful Matching Could Have Prevented a Heartbreaking Conflict

The Texas Surrogacy Case: How Careful Matching Could Have Prevented a Heartbreaking Conflict

The surrogacy case currently unfolding in Texas is heartbreaking for everyone involved: the intended parents, the surrogate, and most importantly, the baby at the center of it.

It is also a case that raises serious questions about how the surrogacy journey was managed long before lawyers, courts and state officials became involved.

According to reporting by The Texas Tribune, surrogate McKenna West was carrying a child for intended parents Nausheen Gilkar and Omar Ahmed when the baby was diagnosed at approximately 20 weeks with hypoplastic left heart syndrome (HLHS), a severe congenital heart condition. What followed was a disagreement surrounding termination, the surrogate’s move to Texas, litigation in multiple states, and ultimately an extraordinary legal dispute over parentage and medical decision-making. (The Texas Tribune)

There are conflicting accounts of precisely what happened after the diagnosis. West’s attorneys have alleged that she was pressured to terminate. The intended parents deny that characterization, and their Alaska court filing states that West initially agreed with the decision before changing her mind. (The Texas Tribune)

We may never know everything that happened privately between these parties.

But from the perspective of an agency that has worked in surrogacy for years, there are several points at which this situation appears to have gone badly—and several opportunities when it might have been prevented from reaching this point.

The First Failure: This Match Should Never Have Happened

The most important lesson from this case begins before the pregnancy ever existed:

Intended parents should never be matched with a surrogate whose views concerning termination do not align with theirs.

This is one of the most consequential subjects discussed during the surrogacy matching process.

Some agencies approach matching largely according to availability: an intended parent reaches the front of the line, a surrogate becomes available, and the two are presented to one another.

That is not how thoughtful surrogacy matching should work.

At Simple Surrogacy, matches are not made on a simple “next in line” basis. Intended parents and potential surrogates answer detailed questions before matching about circumstances in which they would—or would not—consider termination, including the types of fetal diagnoses involved and the stage of pregnancy.

Those answers matter.

It isn’t sufficient for one party to say, “I would terminate for medical reasons,” while the other says the same thing. What constitutes a sufficient “medical reason” can mean dramatically different things to different people.

Would they terminate only when a condition is incompatible with life?

Would they consider termination for a severe condition associated with significant disability?

What about a condition that requires multiple surgeries but can be medically managed?

What about chromosomal abnormalities?

What happens when specialists disagree about prognosis?

These conversations can be uncomfortable. They are also essential.

A Contract Clause Is Not a Substitute for a Real Conversation

According to public reporting about the dispute, West’s surrogacy agreement contained language relating to termination in the event of a fetal abnormality, and questions have subsequently arisen about how she understood those obligations.

If a surrogate expresses discomfort with language requiring termination for something as broadly described as a “defect,” that should never be treated as a minor contractual concern.

It is a flashing red light.

Telling someone that these situations are rare does not resolve the disagreement.

Yes, situations like this are exceedingly rare.

But there is a reason termination provisions exist in gestational carrier agreements at all: rare does not mean impossible.

The entire purpose of addressing extraordinarily difficult circumstances before pregnancy is to prevent the parties from having to discover their fundamental differences while facing an actual medical crisis.

If a surrogate says during contracting, “I am not comfortable agreeing to terminate under these circumstances,” and the intended parents require that she do so, the appropriate response isn’t reassurance that it probably won’t happen.

The appropriate response may be to end the match.

That can be enormously disappointing. People may have spent months getting to know one another. They may already feel emotionally invested.

But disappointment during matching is far preferable to litigation during pregnancy.

A successful surrogacy match isn’t simply two parties who like one another. It is two parties whose values align when it matters most.

The Surrogate Needed Independent Legal Advice That Took Her Concerns Seriously

This case also raises questions about legal counseling.

A gestational carrier agreement is not simply paperwork that gets signed before an embryo transfer. It governs circumstances involving pregnancy, medical risk, money, parentage, decision-making and potentially life-and-death medical situations.

Every surrogate should have independent counsel who makes certain she understands exactly what she is agreeing to.

That includes termination provisions.

If a surrogate raises a concern about contractual language requiring termination for “any defect,” her attorney should explore it carefully.

What exactly does the language mean?

Does it accurately reflect her intentions?

Does it accurately reflect the intended parents’ intentions?

Should the provision be rewritten more narrowly?

And, most importantly, has the concern exposed a fundamental incompatibility between the parties?

An attorney’s job in a surrogacy arrangement isn’t merely to get the agreement signed.

Sometimes excellent legal representation means saying, “You should not sign this agreement as written.”

And sometimes excellent agency work means acknowledging that a match isn’t right and allowing everyone to start over.

The Intended Parents Also Needed Exceptional Guidance

The intended parents deserve careful consideration here as well.

Surrogacy requires an extraordinary investment of time, emotion and money. Families often spend a year or considerably longer pursuing parenthood and may invest well over $150,000+ in the process.

That is one reason I find it difficult to accept a simplistic narrative that parents who had invested so much in creating this child casually decided that they didn’t want him after receiving a diagnosis.

I hope—and want to believe—that their decisions came from fear, grief and an incomplete understanding of what the diagnosis might mean rather than indifference toward their child.

HLHS is unquestionably serious. It is a critical congenital heart defect in which the left side of the heart is severely underdeveloped. Babies with HLHS generally require a series of surgeries beginning shortly after birth, and the surgeries do not “cure” the condition. Children require long-term cardiac monitoring and can face substantial medical challenges. At the same time, treatment exists, and many people with HLHS survive into adulthood and live active lives. (CDC)

That distinction matters tremendously.

When intended parents receive a devastating prenatal diagnosis, an agency should help make certain they have access to the best information possible.

Did these parents speak with a fetal cardiologist?

Were they connected with a major pediatric congenital heart center?

Did they receive a second opinion?

Did someone help them understand the range of possible outcomes rather than simply the worst possible outcome?

Did they understand the difference between a condition that is fatal regardless of intervention and one for which treatment exists but may involve significant medical complexity?

Those are questions—not accusations—and public reporting does not give us all of the answers.

But good agency support should include helping intended parents find experts when decisions this consequential are being made.

Everyone Also Needed to Understand What a Termination Provision Can—and Cannot—Do

Another critical issue is the legal meaning of a contractual termination provision.

A gestational carrier agreement can describe the parties’ expectations and contractual responsibilities. But that is fundamentally different from physically forcing a pregnant woman to undergo an abortion.

That distinction should be made unmistakably clear during the legal process.

When there is disagreement about termination, the question becomes extraordinarily complicated: there may be contractual consequences and there may be litigation, but there is also a pregnant person making a medical decision concerning her own body.

That is precisely why compatibility must be established before embryo transfer rather than tested after a prenatal diagnosis.

A contract is an important protection.

It is not a substitute for matching people whose values already align.

Once the Relationship Collapsed, Litigation Made Everything Worse

By August, this disagreement had evolved into a multistate legal battle involving Alaska, California and Texas.

West sought rights concerning the child’s medical treatment in Texas. Texas Attorney General Ken Paxton intervened. A Dallas judge ordered that the baby receive life-saving treatment and remain in Texas, while a separate order prevented West from making medical decisions for the child and reinforced the biological parents’ parental rights. After the baby’s birth on August 12, the intended parents were reportedly with him while he received specialized pediatric care. (The Texas Tribune)

The case has become national news.

That is an awful outcome for a journey that began with people trying to create a family.

If reports of additional litigation between the intended parents and surrogate prove accurate, I question what meaningful outcome anyone expects to achieve from it.

Even where an attorney believes a contractual claim may legally exist, there is a second question responsible counsel should ask:

What will pursuing it actually accomplish?

Many gestational carriers do not possess substantial financial resources from which a major judgment could realistically be collected. Litigation can cost enormous amounts of money, prolong trauma, generate additional publicity and further entrench everyone involved.

There are circumstances when litigation is unavoidable.

But “Can we sue?” and “Should we sue?” are two very different questions.

And There Is Someone Else Who Will Eventually Read All of This

There is another consequence that deserves consideration.

The internet is permanent.

The baby at the center of this dispute will hopefully grow into a child, a teenager and eventually an adult.

Someday, he may search his own name or his parents’ names.

He may read newspaper stories, court filings, allegations from each side and strangers’ opinions about decisions made before he was born.

That possibility should encourage tremendous restraint from every adult involved.

Whatever mistakes have already been made, the goal now should be reducing conflict, protecting the child’s privacy and making decisions focused on his medical care and future—not winning the public argument.

Surrogacy Isn’t Supposed to Depend on Everyone Hoping for the Best

People sometimes view detailed surrogacy agreements and extensive matching questionnaires as unnecessarily pessimistic.

Why discuss termination?

Why discuss catastrophic pregnancy complications?

Why discuss divorce, death, disability, NICU care or disagreements over medical decisions?

Because responsible surrogacy planning addresses the circumstances everyone hopes will never occur.

The Texas case illustrates exactly why.

There appear to have been opportunities at multiple stages to prevent this conflict:

Careful matching.

The surrogate and intended parents should have had completely aligned expectations surrounding termination before they were matched.

Specific conversations.

“Fetal abnormality” or “defect” isn’t specific enough when people’s definitions may differ dramatically.

Independent and careful legal counseling.

Every party should understand both the agreement and the practical limits of what its provisions mean. No one can be forced to terminate, nor should they be.

Specialist medical guidance.

A significant fetal diagnosis should trigger referrals to appropriate experts and, when appropriate, second opinions before irreversible decisions are made.

Strong agency involvement.

An agency’s job does not end when a match is made or an embryo transfer succeeds. Difficult moments are precisely when experienced guidance matters most.

The Most Important Match Is the Right Match

At Simple Surrogacy, we would rather delay a journey than knowingly make the wrong match.

That isn’t always the easiest choice.

Intended parents have often waited years to have a child. Surrogates are eager to begin their journeys. Everyone wants to move forward. Everyone is always in a rush to grow their family.

But compatibility isn’t an administrative checkbox.

Termination preferences, medical decision-making, communication expectations and deeply held values need to be explored before anyone signs a contract and certainly before an embryo is transferred.

When a disagreement exposes a fundamental incompatibility, walking away from a match isn’t a failure.

It is the system working exactly as it should.

No amount of screening or preparation can guarantee that a surrogacy journey will be free of complications. Human beings can change their minds. Unexpected diagnoses happen. Medicine is uncertain. Life does not always follow a contract.

But we can do far better than simply hoping that difficult questions never arise.

This case is sad for everyone involved. It is especially sad because so much of the conflict appears to revolve around questions that responsible surrogacy professionals are supposed to confront at the very beginning.

The lesson shouldn’t be that surrogacy doesn’t work.

The lesson should be that surrogacy must be done carefully.

Careful matching matters.

Precise contracts matter.

Independent legal advice matters.

Expert medical advice matters.

And when the stakes include a surrogate’s bodily autonomy, intended parents’ path to parenthood and the life of a child they worked so hard to create, getting those things right isn’t optional.

It is the foundation of an ethical surrogacy journey.