A multistate surrogacy controversy poses significant ethical questions about the practice, according to a leading medical ethics and surrogacy expert.
The case centers on an Alaska woman acting as a surrogate who traveled to Texas to give birth to a baby with a severe heart defect after she said his biological parents had declined treatment and asked that she get an abortion. McKenna West gave birth in Dallas last week.
The child was diagnosed with hypoplastic left heart syndrome — a rare congenital heart defect where the left side of the heart doesn't develop fully about 20 weeks into the pregnancy. After learning about the diagnosis, the couple allegedly demanded West "undergo an abortion," according to a statement from Texas Attorney Ken Paxton. Paxton's office said she refused and came to Texas for "protection."
Arthur Caplan, a professor emeritus of bioethics at New York University's Grossman School of Medicine, said there are so many ethical issues at the center of this case, he could spend a semester long course on just it.
"You've got three states," he said, "a fight between the couple that paid this woman to carry their baby and issues around the legitimacy of abortion and whether anybody could force someone to have an abortion who doesn't want to."
Caplan recently retired after 45-year-long bioethics career, which included writing the first paper on ethical issues around infertility treatment. His latest publication on the ethics of surrogacy was published in the most recent issue of Fertility and Sterility — an international, peer-reviewed journal for OB-GYNs and other medical providers who treat issues related to human reproductive disorders.
"[The] public should be paying attention to the many, many gray areas or just absolutely dark areas that this case is triggering," he said.
Tension between surrogate and couple
West said the couple wanted to end the pregnancy at 20 weeks after consulting with doctors about the diagnosis, according to AP reporting. West's lawyers alleged the couple spent weeks pressuring West to seek an abortion after learning of the diagnosis, but court filings show they had sought medical opinions and care, the Dallas Morning News reported.
With support from Alliance Defending Freedom, a conservative Christian organization, West petitioned for a court in Dallas to give her custody two days before she gave birth.
"In this case, the couple said, 'The baby has a severe birth defect….It's a long shot to try and save this baby,'" Caplan said. "The surrogate mother said, 'You can't make me have an abortion. Moreover, I want to try and save the life of this child, even though I'm just the surrogate; it's not my sperm or egg that made it.'"
He said it "ought to be clear" that no one can compel someone against their will to have an abortion. Even if there's a surrogacy contract, Caplan said the surrogate is in charge of the infant until they are born.
The Los Angeles-based couple, Omar Ahmed and Nausheen Gilkar, said West violated the surrogacy contract. AP reports an attorney for West said the couple obtained a restraining order preventing West from seeing or holding the child after he was born.
The couple's attorney told AP Ahmed and Gilkar were in Dallas as the newborn received medical care.
Involvement from Texas authorities complicates case further
On Tuesday — just a few days before West gave birth — Paxton's office intervened. A Dallas County judge ordered UT Southwestern Medical Center and Children's Medical Center of Dallas to provide life-sustaining care. The judge said the child will remain in Texas until a hearing in late August.
Caplan said the court orders compel care, but it isn't a simple treatment.
"This is not therapy," he said. "This almost is innovative surgery. It's been done, but the outcome – it's likely if it's going to work, it's going to require maybe even a heart transplant down the road for this baby if a heart becomes available."
Caplan said that raises a question that doesn't have a clear answer: What can the state require?
"What can Ken Paxton or anybody who's in the attorney general's office in Texas compel?" he said. "Can they say, 'Well, you have to get the surgery' to the mom to save the baby? Or could she say, 'Look, this birth defect is so terrible?' Or could a surrogate mother say 'I'm not going to go along with any treatments because there's no guarantee at all that they're going to even come close to working.'
"So many issues are going to be watched closely from this case."
In addition, the involvement of the courts and Paxton introduces an unusual element to how doctors and medical providers do their jobs.
Caplan said the issues around compelling someone to get an abortion and who has the right to tell the person carrying the child what to do make this a "messier situation."
"It borders on danger for any patient," Caplan said. "When the attorney general steps in and says, this is the care that you're going to get, it's almost overriding what the doctors may think."
The order to require doctors to provide "life-sustaining" care can add even more stress to the process of medical decision-making.
For example, Caplan said if there are complications, doctors may not have a clear understanding of what the attorney general's office can make them do — even if medical professionals don't think it's in the best interest of the child.
"The providers are going to know that the entire legal apparatus of the state of Texas is in the room with them looking over their shoulder," he said. "When you open the door — because of vagueness about all the issues around surrogacy — to having court orders flying and attorney generals making statements or the office making statements, you're making medicine very, very difficult to practice."
'Vague' laws
Caplan said part of the reason this case is so complicated is because there aren't any clear laws governing surrogacy, with some states not recognizing the contracts and other states having more oversight.
"When people follow this case and see that these arrangements can cross state lines, it's going to be important in their contracts — between a couple who wants a baby and needs to hire a woman to carry the pregnancy — to specify which jurisdiction is going to have priority," Caplan said. "In this case, would it be Alaska? Texas? Or California? Because all three are involved."
In the surrogate's home state of Alaska, there aren't any statutes or published case law allowing or prohibiting the practice, but in 2014 courts began granting pre-birth "parentage orders to married heterosexual couples who used their own eggs and sperm," according to the American Society of Reproductive Medicine's legal professional group.
California, where the couple is from, has more statutory law and published case law on surrogacy arrangements than any other state. It's considered a highly surrogacy-friendly state — allowing both pre-birth and post-birth parentage orders regardless of the intended parents' marital status or sexual orientation. The contracts are also subject to more specific regulations — including requiring both parties to have legal representation. A written contract is also required before an embryo is transferred to the surrogate.
Texas, where the child was born, allows surrogacy arrangements and has set requirements for a contract to be valid and enforceable. Texas requires medical evidence that the "intended mother is unable to carry a pregnancy to term and give birth to the child reasonable risk to her physical or mental health or to the health of the unborn child."
In addition, Rachel Rebouché, a University of Texas School of Law professor who specializes in reproductive law, told the Texas Tribune the state's family law recognizes anyone who gives birth in Texas as the legal mother of that child.
Caplan said there are thousands of surrogate arrangements in the U.S. every year, which means it's a widely used practice that's still undefined.
"Surrogate motherhood involving people who are giving the sperm and the egg when you have biological parents is a vague area," Caplan said, "where very little legislation exists, where courts tend to make the final decisions and where things change from state to state."
Unanswered questions, possibly wide-reaching implications
Caplan said the flaws and weaknesses that contribute to a lack of oversight and regulation mean it isn't clear how this case will play out — which is why he said it's important for state and federal lawmakers to pursue legislation that clarifies what is and isn't allowed.
"People don't want to get into that on a particular case because they feel they don't always have the information," he said. "You've got to do it as a general policy debate."
He said those policies should provide a framework that answer big questions within a surrogacy arrangement — like who pays for different types of care, who provides health insurance, who will be the "ultimate decision-maker" before and after birth, and what happens under different circumstances, like medical complications.
Caplan listed dozens of unanswered questions that medical ethics experts are still discussing, like should the intended parents be screened like parents who adopt are or what rules should exist around surrogate recruitment. He said it's important for policymakers to have these conversations sooner rather than later.
There's also the unanswered question of the cost of treatment.
"If something goes wrong in the pregnancy, who's going to cover the bill if it requires extensive medical care?" Caplan said. "There's no answer to that. And normally places like Texas, which are very pro-life, tip toward paying out of Medicaid programs if there's no other source…. And so, who's going to pay for this? Everybody in Texas, the taxpayers of Texas."
Caplan said this case could set several precedents based on what happened and how policymakers react to it. He said the effect it will have is still "up in the air."
"[The many issues are] good for my business in ethics, but I don't think it's good for anything else," he said.
Abigail Ruhman is KERA's health reporter. Got a tip? Email Abigail at aruhman@kera.org.
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