Surrogacy, Custody and Morality

Because that's really what this whole thing is about.

Not the baby, Rumi. Not the ethics of surrogacy, or even the pro-choice/pro-birth argument. From the moment this story hit news headlines, it has been about Makenna West.

Her wants. Her rights. Her feelings. Her morals and beliefs. Her decisions. Her desires for what happens next.

I've mostly kept my opinions to myself, because I have complex feelings about surrogacy in general, and because I try to research the facts before I form a judgement. Needless to say, with such a hot-button topic, finding the facts has not been easy when sifting through extremely biased headlines. Also, I'm sad for all of the involved parties, which makes it hard to be objective.

So, Surrogacy...

Part of my issues with Surrogacy is that it is exploitative, and there aren't enough protections or precautions on either side of the isle. Just a contract, which, as we are now discovering, is not the solid barrier anyone thought it was.

Sometimes, a surrogate is a friend or family member of the prospective parents willing to help people who can't have their own children. I know people who have been genetic donors or surrogates for same-sex friends, and are tangentially involved in the resulting child's life, but with no legal custody or parental role.

But those are a tiny fraction of Surrogates. Far more often, a surrogate is someone from a disadvantaged background who already has children of their own, (At least one successful, non-complicated pregnancy is usually a requirement to become a surrogate at all), and needs money that regular employment isn't providing.

The problem is that the same pregnancy hormones that are meant to ensure that the mother bonds with her newborn don't go away just because the baby isn't biologically hers. While Surrogates often already have children of their own, there is a big difference between having your own child, and bearing a child you won't get to keep. The sad truth is, no one knows how they'll handle giving up a child they bore until they do it.

That's why Surrogacy Contracts and Screenings are so detailed. It's not just a case of ticking off boxes; surrogates and parents have meetings where they go over every scenario they can think of before the contract is signed. Termination due to incompatibility with life is always one of the subjects addressed, and if a Surrogate thinks that she might have issues with abortion, she'll get matched with a couple that also choose not to abort.

To be fair, there are a lot of aspects of pregnancy that no-one knows how they'll handle until it comes up. Ms West has two children already, but it's not rare for someone to have an easy pregnancy or two, and then get blindsided by a complicated one.

Pregnancy Hormones may be the punchline of a bad joke more often than not, but they have very real effects, or Pre- and Postpartum conditions wouldn't exist.

The Facts As We Know Them...

Sidenote: as this is a developing case and there are a lot of details being kept private, this list is subject to change.

• At some point prior to surrogacy, Makenna West lost her job as a nurse

• Last year, Makenna West signed a surrogacy agreement with Nausheen Gilkar and Omar Ahmed. Included in the agreement was a clause for abortion if the foetus was found to have medical issues incompatible with life.

• Nausheen and Omar had already tried to get pregnant naturally, and underwent several rounds of IVF before Nausheen required a hysterectomy, putting an end to those hopes. Surrogacy was not a spur-of-the-moment choice.

• The surrogacy agreement was not a meet-and-greet affair; there are extensive surveys to match surrogates with couples that share their values. If Makenna had any strong views on abortion, this was the time to voice them.

• During a routine 20-week scan, the foetus was found to have HPLH syndrome, where half the heart is missing or underdeveloped.

• Nausheen and Omar elected for abortion, with the reasoning that survival odds for this condition are low and would require multiple surgeries as soon as the baby was born just for the baby to have a chance.

• Makenna made the appointment, but didn't go through with it

• Nausheen and Omar accepted Makenna's decision and worked with a top paediatrics hospital in their home state, putting together a team to give the baby it's best chance of survival

• At some point, Makenna spoke to her brother, who got her in touch with Pro-Birth Advocacy groups and offered to adopt the baby himself (Mega-Illegal, as this wasn't Makenna's baby to offer or accept)

• At some point, there was a pregnancy photoshoot (Not illegal, but will likely be used as evidence of intent)

• Around week 23, Makenna ghosted Nausheen and Omar and moved to Texas, hoping that giving birth there would grant her parental rights due to the state's anti-abortion laws.

• Upon giving birth, Makenna named the baby and sued for custody but not parental rights, with the stated intent of letting her brother adopt. She also wants the rest of the surrogacy payment, which stopped being paid when she ghosted the biological parents.

• The first news stories also included links to a GoFundMe for Makenna, and her current living and court costs are being paid by Conservative Advocacy Groups.

• Currently, there is a restraining order in place barring Makenna from seeing the baby, who his bio-parents have named Rumi, and she has no decision-making authority

• The defence for Makenna is making a big deal about Omar and Nausheen previously having chosen to abort, including asking Nausheen under oath “Would you trust somebody to care for your child that wanted your child dead?” and Makenna's own statement that she doesn't think the couple will pursue every possible treatment.

Yikes...

Yeah.

Honestly, a part of me feels sorry for West. All the information sessions in the world only do so much to prepare you for being a surrogate, especially once bonding hormones come into play.

On the flip side, I also firmly believe that West has lost any right to be privy to Rumi's medical information, or the family's decisions. If she had any morals or sense, she'd plead temporary impaired reasoning and throw herself on the court's mercy.

Because whatever your stance on abortion may be, West is guilty of Breach of Contract, and Emotional and Financial damages at the very least. Depending on foetal personhood laws, Kidnapping and Trafficking across State Lines may also apply.

(I hope they don't, for the sake of far too many women trying to flee abusive partners while pregnant, but this case is going to become a landmark ruling in a lot of different ways...)

Omar and Nausheen are probably being advised to be as non-specific as possible, because once there's a legal record that "they promised XYZ", that can be used as grounds to sue later. Especially because there comes a point where "doing everything possible to keep someone alive" does nothing but diminish their quality of life.

To give some perspective, the chances of baby Rumi making it to adulthood without a heart transplant, which are in high demand and short supply, are about 5%. Even if a transplant isn't needed, he will need multiple open heart surgeries, a heavy medication regime, and high medical care throughout his life.

Nausheen and Omar are already shelling out millions of dollars in medical costs, the cost of accommodation while this legal battle is fought, as well as whatever they've already paid for the medical team in California and a medical transport flight back home if Rumi survives the first batch of operations.

What Happens Next?

Honestly, that's the big question.

In an ideal world, this would end with stronger protections and support for surrogates, including psychological screening and therapy during the pregnancy, as well as tighter legal wording around bodily autonomy.

West and her Pro-Birth Backers are probably hoping for a symbolic victory where she gets parental rights and "lets" the bio-parents adopt Rumi back for a large cash settlement and the case is used to further restrict surrogacy and abortion rights.

Fortunately, with the way this has played out, that's unlikely to happen.

There is no question in anyone's mind that West has overstepped in a big way, whether or not you think she was right to do so.

There were multiple correct ways to handle this, including West stating that she couldn't go through with the abortion, let's wait and see if he baby survives to be born, or further testing to see how bad the HLHS was. While one could argue that West was in a vulnerable state that her backers took advantage of (see: Crisis Pregnancy Centres), she made the decision to vanish and resurface with a medical crisis and legal papers.

Just how screwed is West right now?

Legally, it's hard to say while the case is ongoing.

Practically? I would not want to be West when she realises how totally and completely she effed-up her life.

Sure, right now she's getting support and money from the far right, and all the infamy and attention that comes with it. Sure, there's a giant GoFundMe with her name on it. She might even get a brief taste of the Celebrity life or Political Spokesperson out of it.

But her career as a nurse? There is literally no hospital that will ever hire her now, not with her demonstrated willingness to abuse the system and put her personal feelings above medical directives. Certainly no one would trust her with patient care, with a proven inability to emotionally detach from vulnerable patients. She's a malpractice lawsuit waiting to happen.

That's not the end of it, either. With a documented and serious Breach of Contract attached to her name, West is going to have trouble finding anyone who will accept her name on a contract ever again. Whether it's housing, co-signing a loan, or even basic terms and conditions, that mistrust is going to follow her the rest of her life.

The fundraiser may have raised six figures, but GoFundMe can take that fundraiser down at their discretion, and legal battles that make news headlines is one of their most common reasons for doing so. The court can also order it taken down, or the profits seized to pay costs in a ruling. The odds of her actually walking away with that money are... not high.

Conclusion?

I don't know, and that's what worries me the most. The only thing anyone knows for sure at this point is that this ruling is going to inspire a lot more court cases in the near future.