Nightmare Surrogacy Cases: McKenna West | Part 2: Key Takeaways & Ways To Avoid Disputes
In Part One, we followed a series of legal disputes surrounding the gestational carrier McKenna West and Baby Rumi. As we follow the cases, from parentage proceedings in California to the lawsuit West filed in Alaska to challenge the California proceeding, to the emergency proceeding concerning medical care in Texas, and ultimately to West’s application to the U.S. Supreme Court in September 2026, we see how extreme complications can arise from a surrogacy arrangement.
While the McKenna West cases offer a rare example of a surrogacy journey that went wrong under multiple factors, for intended parents and surrogates considering a surrogacy arrangement, it touches on a more common question: When entering a surrogacy agreement, how can parties prepare for a meaningful discussion about potential abortion language and understand their options if circumstances change? Finally, is the fear that the surrogate will take the baby and try to raise it as her own realistic?
1. Before the Agreement: Are the Parties Really on the Same Page?
The McKenna West case began with a contingency that the parties had already addressed in their agreement: what would happen if the fetus were diagnosed with an abnormality and the intended parents requested an abortion.
The surrogacy agreement between West and intended parents Gilkar and Ahmed provides that the gestational carrier shall terminate the pregnancy when the designated physician determines that there is a fetal abnormality and the intended parents request a termination. In April 2026, an ultrasound at approximately 20 weeks revealed that the fetus West was carrying had hypoplastic left heart syndrome (HLHS), a serious congenital heart condition. The intended parents requested that West terminate the pregnancy, pursuant to the surrogacy agreement. West ultimately refused.
If we review the surrogacy agreement between West and the intended parents Gilkar and Ahmed, it does not occur to us that West would be blindsided when the intended parents requested that she go through an abortion. Yet, West ultimately decided to not abort, and their disagreement became the starting point for the legal disputes that followed.
A typical surrogacy journey offers several opportunities to surface this kind of gap before a pregnancy begins. The match between West and Gilkar and Ahmed was facilitated by a long-established agency. In a typical agency process, a prospective carrier completes a questionnaire at sign-up indicating her preferences regarding termination, so the agency can find suitable matches. A carrier who does not wish to terminate a pregnancy for any abnormality could indicate this on her questionnaire. If the agency accepts “no term” surrogates, as many do, it would match her with intended parents who also would not terminate a pregnancy for any reason other than a threat to the surrogate’s life.
There would be another opportunity to discuss preferences at the match stage, where the carrier and intended parents typically meet online to ask each other questions, and the topic of abortion is frequently discussed at this stage. Some agencies also arrange joint counseling sessions with psychotherapists, during which termination preferences may also be discussed.
At the legal stage, all the states that have laws permitting surrogacy require the carrier and the intended parents to be represented by separate, independent attorneys before signing the agreement (See, e.g., California Family Code § 7962(b)). The carrier’s attorney reviews the surrogacy agreement with her, explains the terms, and gives her opportunities to negotiate them. In our experience, whether we represent the carrier or the intended parents, it is not unusual for a carrier to negotiate changes to the termination or selective reduction provision at this stage.
We do not know exactly what was discussed between the parties in the McKenna West case, but the outcome seems to suggest that something may still be missing in this standardized process from matching to drafting. Signing the same surrogacy agreement does not always mean that the parties have a shared understanding of what terminology means and what actions are to be taken in some of the most difficult scenarios.
Gestational carriers and intended parents may be able to answer quickly to questions such as “would you agree to terminate for a fetal abnormality,” but the answer may become less certain when the circumstances are explored in greater detail. Some gestational carriers may be comfortable with termination as long as intended parents request it, while many others may want to decline termination in certain scenarios, such as when the abnormality is a cosmetic abnormality, a correctable birth defect, or a condition where a life can be led, such as Down syndrome. Gestational age may also be a factor that affects some gestational carriers’ willingness for termination. These conversations are necessary before the parties sign.
The conversation with the attorneys should also cover the processes, such as what diagnoses are required before a determination can be made, and whether the carrier is entitled to a second opinion. In the event that the gestational carrier’s state of residency does not permit abortion beyond a certain gestational week, is the gestational carrier willing to travel, and who is arranging and paying for such travel? It is also important to note that while gestational carriers can promise to travel to fulfill intended parents' wishes, this may not always be enforceable and needs to be acknowledged beforehand. The same care should be given to selective reduction. Agreement on whether to terminate a pregnancy does not necessarily answer whether the parties would agree to reduce the number of fetuses in a multiple pregnancy, or under what circumstances. In states where abortion is criminalized, the contract may not provide for an abortion outside of the state’s law, and the attorneys will advise accordingly.
These conversations can be uncomfortable, particularly when parties are eager to move forward, but it is important to have them at the agreement-drafting stage rather than only when there is an immediate medical crisis. In our experience, it is always worth taking the time to read these provisions carefully, consider how they might apply in practice, and clarify any uncertainty with your attorney during the contract review. If the parties discover that their expectations are incompatible, they can consider whether the agreement should be revised or whether the match is appropriate in the first place.
Where those conversations result in a particular understanding, the parties should consider memorializing that understanding clearly in the agreement or related documentation, rather than relying on assumptions about what everyone “understood” at the time of signing.
2. Can Intended Parents Force a Surrogate to Terminate Her Pregnancy?
As discussed above, the legal stage is where the parties’ shared understanding is translated into contractual language that defines their respective rights and obligations. However, even careful drafting has limits; it cannot guarantee that every provision will be enforceable as written. The short answer is no.
The turn of events in the McKenna West case illustrates an important distinction between what a surrogacy agreement can require as a contractual matter and what the law can compel a person to do with their own body. A surrogacy agreement, like other contracts, can create legally recognizable rights and obligations between the parties and provide evidence of the parties' intentions. However, when it comes to enforcing a termination or selective reduction clause, no court will compel the gestational carrier to terminate the pregnancy, even if the gestational carrier agrees to do so when she signed the agreement.
A court order compelling a gestational carrier to terminate a pregnancy would implicate the liberty interest in bodily integrity that is recognized under the Due Process Clause of the Fourteenth Amendment. Dobbs v. Jackson Women’s Health Organization does not change this, as it only addressed whether the Constitution protects a right to obtain an abortion, not whether a court may compel a person to undergo one. Several states, such as California, have constitutions that further protect reproductive freedom and prohibit the state from denying or interfering with an individual's reproductive freedom (see, e.g., Cal. Const., Art. I, § 1.1). In ordinary contract law, a party may seek damages for a breach of contract, but specific performance, a court order requiring a party to do what the contract promised, is a different remedy. Courts generally do not grant it for personal services.
Some modern state surrogacy statutes expressly incorporate this principle. For example, the Illinois Gestational Surrogacy Act provides that “specific performance is not a remedy available for breach by a gestational surrogate of provision in the agreement that the gestational surrogate be impregnated, terminate a pregnancy, or submit to medical procedures.” (750 ILCS 47/55) In other words, even where a gestational surrogate has agreed by contract to undergo a particular medical procedure, the intended parents cannot obtain specific performance to force her to do so.
Washington provides in RCW 26.26A.715(g) that the surrogacy agreement must permit the gestational carrier to make all health and welfare decisions regarding herself and her pregnancy. These rights apply notwithstanding a surrogacy agreement, and provisions in the agreement to the contrary are void and unenforceable. Under New York’s Child-Parent Security Act’s Surrogates’ Bill of Rights, it is expressly included that a gestational surrogate has the right to make decisions to continue or end the pregnancy and decisions to retain or reduce the number of fetuses or embryos they are carrying (N.Y. Fam. Ct. Act § 581-602). The statute therefore expressly preserves the gestational carrier’s authority over these medical decisions even when the surrogacy agreement provides otherwise. Some other states require similar rules to be written into the content of the surrogacy agreement.
Finally, Texas Family Code § 160.754(g) provides that a gestational agreement may not limit the right of the gestational carrier to make decisions to safeguard her health and the health of the embryo.
Why termination provisions still matter
Nevertheless, this does not make provisions concerning termination or selective reduction meaningless.
A termination clause may still define the consequences of a party's failure to follow the agreed course of action. In the McKenna West case, the agreement provided that if the intended parents request termination in writing for a fetal abnormality, as determined by a physician they designate, the carrier agrees to terminate. Her violation of such terms would be a material breach; the intended parents’ financial responsibility to her would then cease, and she must immediately reimburse all money paid to her or on her behalf and is also liable for additional monetary damages for losses beyond that reimbursement, as determined by a court of competent jurisdiction. That is the route the intended parents pursued. Unable to obtain West's compliance with the termination provision, Gilkar and Ahmed reportedly asserted breach-of-contract claims against West and sought more than $100,000 in damages.
A termination or selective-reduction provision may not function as a mechanism for physically compelling a medical procedure, but it can define the parties' expectations in advance. It identifies which diagnoses or circumstances are covered, who must be consulted, and what happens if the carrier declines. After the Dobbs decision, it should also address where and by what gestational age a termination could lawfully take place.
Additionally, the inclusion of the termination provision also preserves the integrity of the agreement as the foundation of the intended parents' parental rights. A surrogacy agreement allocates obligations of each party and, at the same time, documents the parties' intent as to who the child's parents will be. Under California law, as established by Johnson v. Calvert, 5 Cal. 4th 84 (1993), intent is what determines parentage in gestational surrogacy. If the surrogacy agreement is vague or silent on the scenario of termination, it may be argued by a gestational carrier that by requesting to terminate, the intended parents abandoned their intent to parent, or that her choice to carry the pregnancy to term establishes her own parental rights. A precise termination clause within a surrogacy agreement should reduce this ambiguity.
3. When a Disagreement Happens
In a scenario like the McKenna West case, it is understandable that prenatal diagnosis can transform a surrogacy journey into an intensely emotional situation very quickly, and surely, such instances do not necessarily present the same question for every family. The available treatments, gestational age, and recommendations of the treating physicians can all affect how the parties understand their options, as can the intended parents’ wishes and the gestational carrier’s own views.
One practical lesson we can learn from the case is that when termination appears likely to become a point of disagreement, it can be especially important not to let the intensity of the situation dictate the next steps.
The first step is to identify what the parties disagree about. A dispute that looks like a single question, terminate or not, often contains several. The parties may understand the diagnosis differently, hold different views of the likely prognosis, or agree on the medical facts but disagree about whether termination is appropriate in those circumstances. Each kind of disagreement calls for different help. A disagreement about the diagnosis or prognosis may be narrowed by the treating medical team or a specialist's second opinion, and each side's understanding of its rights and obligations requires its own independent counsel. Where appropriate, the parties should also consider consulting mental-health professionals familiar with the particular pressures of assisted reproduction and pregnancy. If a joint counseling was undertaken in the past, this would be an ideal counselor to request to meet with again. While none of these professionals can guarantee that the parties will ultimately reach the same conclusion, they can help ensure that the parties have a clear understanding of the medical and legal circumstances in making a consequential decision.
Time is another important consideration. A prenatal diagnosis may require additional testing or specialist consultation, while the medical options themselves change as the pregnancy progresses, and, after Dobbs, so may the places where some termination options are lawfully available. The medical timeline and the legal timeline therefore run at very different speeds. The parties may need to make time-sensitive decisions before every medical or legal question has been resolved, and they should not assume that a contractual dispute will be decided before the medical decision must be made.
Intended parents may reasonably ask whether a carrier's refusal is a breach of the agreement and what remedies are available. Depending on the agreement and the governing law, those remedies may include reimbursement of specified payments or monetary damages for legally recoverable losses, as Gilkar and Ahmed sought in their breach-of-contract claims, and possibly emotional distress damages. But these remedies are not automatic: a party must establish the basis for the relief sought, and any provision on damages or reimbursement must be enforceable under applicable law. Most importantly, a claim for breach is not a request for specific performance. As discussed in Section 2, the law will not order a carrier to undergo an abortion or selective reduction.
4. What is the Chance the Surrogate Claims My Baby As Her Own and What Can Be Done?
One common fear realized in the McKenna West case is, will a gestational carrier become bonded to the intended parents’ child and attempt to claim the child as her own? In West’s case, she fled to Texas and tried to claim the child was her own by virtue of her refusal to abort the child, naming the child, and challenging the parentage action in California. First, this is an extreme case which is seldom seen. Normally, the gestational carrier has had children of her own and will be attached to those children rather than the child she is carrying. In West’s case, she apparently has lost custody of her children when she left behind them in Alaska. Second, gestational carriers have undergone a psychological screening prior to the legal stage. This screening should inquire as to whether they would consider themselves the parent of the child they gestate or understand the intended parents are the parents of the child. Third, at the legal stage, their independent attorney will explain to them how the child will not be there child unless it is the result of a breach where they are the genetic mother of the child. Finally, as the West case shows, a parentage judgment can be obtained even without the cooperation of the gestational carrier, in the many states where surrogacy is legally recognized based on the contract, and this judgment arguably will be enforceable whatever state the gestational carrier lives in.
Conclusion
The McKenna West cases may alarm intended parents and gestational carriers who are just beginning their own journey, but it is worth remembering how rare cases like this are. Most surrogacy journeys offer multiple opportunities for parties to discuss their expectations, ask difficult questions, and build a shared understanding before pregnancy begins, and avoid continuing, or finding a compromise both can accept if they have different beliefs regarding abortion. The practical lesson is to treat termination and selective reduction as substantive issues requiring thoughtful discussion, not just routine contract language. By addressing difficult possibilities early and documenting their understanding clearly, intended parents and gestational carriers can enter an arrangement with greater clarity and confidence.
Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help intended parents and gestational carriers navigate every stage of the legal process, from pre-birth orders to parentage judgments. If you're building your family through surrogacy, contact our team to schedule a consultation.
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