She Said “NO” to Abortion: ACLJ Files Emergency Supreme Court Brief in Surrogacy Case

Alaska nurse McKenna West agreed to carry a child for a California couple. However, she never imagined that pregnancy would end with her fighting for her legal rights at the United States Supreme Court.

Midway through the pregnancy, doctors diagnosed the baby with hypoplastic left heart syndrome, a serious, though treatable, congenital heart defect. According to court filings, the intended parents pointed to provisions in the surrogacy agreement covering severe fetal abnormalities and asked West to abort the baby. She bravely refused.

West said she could not kill the child growing within her, and offered to raise the baby herself or arrange an adoption if the intended parents would not raise him. She was then, according to her filings, threatened with more than $250,000 in financial penalties for continuing the pregnancy.

No woman should be threatened with financial devastation for refusing to abort the child she carries. And no child should be treated as a failed transaction because he needs medical care.

West’s refusal set off a legal chain reaction that has now reached the nation’s highest Court. On Tuesday, the ACLJ filed an emergency amicus brief at the Supreme Court in support of West.

Our brief focuses on a specific constitutional question: Can a court turn a woman’s objection to its authority into supposed consent to that authority? But this is not an abstract procedural dispute. The resulting judgment is being used to exclude the very woman who refused to abort the baby from proceedings concerning his care.

A California Jurisdictional Trap

West’s position in the California court has always been straightforward. She maintains that the surrogacy agreement required any dispute to be litigated in Alaska, not California, and that she only appeared before the California court to challenge its jurisdiction over her. California law explicitly allows exactly this kind of move – what’s known as a “special appearance,” where a person goes to court specifically to contest the court’s authority without that appearance being treated as consent to it.

The California court saw it differently. Because West filed a full legal argument laying out her jurisdictional challenge and included lengthy exhibits, the court ruled that the filing itself amounted to consent to its authority. The more thoroughly she objected, in other words, the more the court decided she had actually agreed.

That is precisely the reasoning our emergency amicus brief asks the Supreme Court to reject. A person should never lose a constitutional right by trying to exercise it – and due process cannot mean that objecting to a court’s power is the same thing as submitting to it.

A Child’s Life at Stake

The stakes go well beyond the question of jurisdiction. Relying on that same disputed authority, the California court went on to declare the intended parents the legal parents of the child – now known in court filings as Baby G. – who was born in Texas and has since undergone treatment for his heart condition. A Texas court has recognized and honored that ruling, and the intended parents are threatening to relocate the child to California, without any guarantee of continuing the medical treatment he needs to live.

Our brief argues that the parentage judgment cannot stand on the foundation it was built on. If a court can manufacture consent out of an objection, then the constitutional safeguards meant to prevent courts from overreaching their authority mean nothing. West is now asking the Supreme Court to pause enforcement of the California order while the Justices consider the case.

The Question Before the Court

Notably, the underlying facts of this case cut against the assumption that a serious prenatal diagnosis leaves a mother with no real choice. Many infants with the same heart condition as Baby G. go on to live perfectly normal lives after receiving treatment. West’s decision to continue the pregnancy reflects exactly that reality. Baby G.’s worth does not depend on a promise of perfect health either. His heart condition might make him vulnerable, but it does not make him disposable.

But the legal question the Supreme Court must now confront is narrower, and in some ways more consequential: Can a court obtain power over a person simply by redefining her objection as an agreement?

Our emergency amicus brief, filed Tuesday, argues the answer must be no – and that due process demands nothing less.

The ACLJ is standing for vulnerable human life and against the use of contracts to pressure women into abortion. That commitment is why we are supporting West’s request for emergency relief.

We’ll continue to update you as this case moves forward.

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