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A heartbreaking interstate surrogacy story has become the latest cause célèbre for social conservatives: one that seems to scramble the conventional politics of reproductive health.
The so-called baby Gabriel case began when McKenna West, a surrogate from Alaska, learned that the child she was carrying had hypoplastic left heart syndrome, a serious congenital disease. West and the child’s genetic and intended parents, Nausheen Gilkar and Omar Ahmed of California, dispute what happened next. West asserts that Gilkar and Ahmed pressured her to terminate the pregnancy; Gilkar and Ahmed assert that West initially agreed that termination would be best and even made an appointment before changing her mind.
Whatever the case, West eventually decided she wanted to continue the pregnancy. She then made contact with the anti-abortion group Live Action. From there, her story went viral in the conservative media ecosystem. After Live Action paid for West to travel to Texas, Ken Paxton, the attorney general and GOP Senate candidate, secured an emergency order preventing West from taking her unborn child out of the state and requested that local hospitals provide lifesaving care for him if needed. West has since given birth, and Gilkar and Ahmed have custody, as well as the power to make medical decisions. West, who is barred from presenting herself as a parent, cannot visit the child because of a restraining order. She, in turn, is pursuing custody of the boy, whom the couple have named Rumi.
Surrogacy cases can be complicated, and this one is no exception. State laws on the subject vary considerably, with some prohibiting commercial surrogacy and others liberally permitting it and even issuing parentage orders before birth. There is no comprehensive federal legislation on the subject, which increases the uncertainty about the outcome of cases like this one.
Surrogacy contracts often include stipulations that give intended parents authority over an abortion decision in either direction: Sometimes, these guidelines prohibit a surrogate from ending a pregnancy (absent certain medical emergencies) or require an abortion or selective reduction under specific medical circumstances.
In practice, these clauses don’t capture the complexity of surrogacy dynamics. Because of confidentiality provisions and the private nature of these disputes, there is plenty we don’t know about how common fights like this one are—or how they’re resolved. It’s tempting to assume that intended parents always prevail because they have more resources and an advantage in bargaining power, but studies complicate the assumption that surrogates are always financially vulnerable or powerless to negotiate, especially when their claims are backed by attorneys and fertility agencies. The picture is messy.
A handful of congressional Republicans are championing legislation that would bar a federal judge from ordering a surrogate to get an abortion. The truth is, no court would force anyone to end a pregnancy against their will, but that doesn’t eliminate the question of coercion. Legal scholars have debated whether surrogates should pay legal damages if they fail to honor a contractual abortion provision, surrender payments remaining on the contract, or even pay back money they already received. That threat could pressure surrogates. One way or another, it’s hard to predict how such a case would play out.
West’s story, however, has gained momentum not because of the messiness surrounding surrogacy agreements and termination clauses. Instead, it’s because the case is a perfect vehicle for claims about fetal rights—and because a number of disturbing or outright bizarre stories about surrogacy offer conservatives an opening to attack abortion and in vitro fertilization too.
Since the Supreme Court overturned Roe v. Wade, abortion opponents have needed a new mobilizing mission to keep recruits and funders interested. The priority has been the recognition of constitutional rights that apply the moment an egg is fertilized—an idea of fetal personhood that the movement has pursued since before the court’s 1973 abortion decision. The movement’s ultimate goal is a kind of anti-abortion equivalent to Roe: a holding declaring that the word person in the 14th Amendment applies in utero and reasoning that state and federal laws protecting abortion or IVF are themselves unconstitutional.
Even with a conservative Supreme Court supermajority in place, there doesn’t seem to be any immediate prospect for the movement to secure a victory like this. That has energized abortion foes looking for more-incremental wins, including the 2024 Alabama Supreme Court’s holding that IVF embryos qualified as persons for the purpose of the state’s wrongful-death law, a decision that temporarily paused IVF in the state.
The public discussion of West’s case reflects a similar dynamic. West’s defenders often stress that the unborn—whether in the context of abortion, IVF, or surrogacy—must be treated as rights holders, not commodities. The Alliance Defending Freedom, a prominent conservative Christian litigator, represents West and underscores that “every child deserves a chance at life.”
And conservatives see a chance to target surrogacy because of the bonkers cases that have recently made headlines. First, in December, the Wall Street Journal reported that Chinese tech billionaire Xu Bo had used surrogates based in the U.S. to father more than 100 children. An ongoing dispute between a Florida surrogate and a Chinese intended father is raging on, with the surrogate, Kyla Simpson, alleging that she was left to care for the children, and the intended parent claiming that she deceived him. Guojun Xuan and Silvia Zhang, a California couple who had emigrated from China, are currently under investigation after the police found 21 children, most of them conceived by surrogacy, in their home; the investigation began after a 2-month-old boy was hospitalized with serious injuries.
Conservative politicians have clearly spotted an opportunity. Cases like Xu’s dovetail with conservative concerns about birthright citizenship, sharpened by the Supreme Court’s decision in Trump v. Barbara. Citing concerns about birth tourism, Florida lawmakers have passed legislation barring foreign nationals from certain countries of concern (including China) from participating in surrogacy contracts, and Texas legislators are considering a proposal to ban foreign nationals from using surrogates in the state. Florida Attorney General James Uthmeier is now arguing in court that his state’s surrogacy law is unconstitutional because it violates the 13th Amendment and amounts to slavery insofar as it treats children like property.
West’s case is another opportunity for conservatives to shine a light on an issue they hope will lead to broader regulations of IVF treatment. A growing number of state GOP platforms include anti-IVF language, and Paxton, in running for Senate, now claims he is in favor of IVF restrictions.
The West case fits this playbook. Whatever happens to her claim for custody—or to the child she bore—her story is worth following because of its central irony. A fight that began because West felt deprived of the decision to continue her pregnancy is advancing a campaign to make the law focus less and less on the needs of pregnant patients like her.
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