A Surrogate Refused an Abortion and Three States Started Fighting Over the Baby

A surrogate nine months pregnant was sued for more than $100,000 because she refused to terminate the pregnancy after the baby was diagnosed with a serious heart defect. Under Texas law, that termination clause was void the day it was signed — and Family Code § 160.754(g) says a gestational agreement “may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo.”

The harder question is the one Texas courts are actually fighting over right now: who is this baby’s legal mother? The answer turns on a single filing that most people entering these agreements never make.

What Happened to McKenna West and the Baby She Carried

Specialists diagnosed the baby with hypoplastic left heart syndrome — a condition treatable with roughly an 85% success rate when surgery is performed within a week of delivery. The catch was geography: she had to deliver at a hospital equipped to perform that surgery, and Alaska, where she lived, does not have one. She said she prepared herself to move anywhere in the country to give the baby that chance.

Terminate, or owe six figures

Within days, the intended parents directed her to abort, citing financial consequences under the surrogacy contract. She scheduled a termination in Seattle for two weeks later. After talking to her brother, she did not go through with it. “I knew that this baby boy that I was carrying, that I was feeling move…he deserved that chance,” she said.

She moved to Texas and delivered here

With the Texas Attorney General’s office intervening, she moved to Texas and gave birth at Children’s Medical Center in Dallas — reported to have a 100% success rate on this procedure. The Attorney General secured a court order requiring that the child receive the life-saving care. The intended parents obtained an emergency order and have physical custody while treatment continues, and they hold a California judgment declaring them the parents. The surrogate is appealing. Even the child’s name is contested: she calls him Abraham; the intended parents’ lawyer calls him Rumi. Same baby, two names.

Question One: Can a Texas Contract Require You to End a Pregnancy?

No. Under the Human Life Protection Act, Texas Health and Safety Code Chapter 170A, performing or inducing an abortion is a second-degree felony — 2 to 20 years — rising to a first-degree felony if the unborn child dies, plus a civil penalty of not less than $100,000 per violation under § 170A.005. The only exception in § 170A.002(b) is a licensed physician acting on reasonable medical judgment where the pregnant female has a life-threatening physical condition. A fetal diagnosis is not that exception.

Basic contract law does the rest

Texas courts do not enforce a contract provision that requires an illegal act, because enforcing it would mean ordering someone to break the law. The moment the termination clause called for conduct that is a felony in Texas, that clause was not merely hard to enforce — it was void. Note also § 170A.003: the statute expressly cannot be construed to impose criminal, civil, or administrative liability on the pregnant woman herself.

The Family Code says it even more directly

Texas Family Code § 160.754(g) is one sentence long and decides the issue: “A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo.” A clause ordering a termination over her objection is exactly the kind of limitation that sentence forbids.

Question Two: Who Is the Legal Mother in Texas?

Texas permits surrogacy, under Chapter 160 of the Family Code. But the statute carries a requirement most people skip: the agreement has to be validated by a Texas court, and the sequence matters.

The three requirements people miss

• Timing. Section 160.754(e) requires the parties to enter the agreement before the 14th day preceding the transfer of eggs, sperm, or embryos. Before, not after.
• Residency. Section 160.755(b)(1) allows a validation proceeding only if the prospective gestational mother or the intended parents have resided in Texas for the 90 days preceding the filing.
• A hearing with findings. Section 160.756(b) requires the court to find, among other things, medical evidence that the intended mother cannot carry a pregnancy to term, a home study unless waived, and that the surrogate has had at least one previous pregnancy and delivery.

What happens if validation never occurred

Section 160.762(a): “A gestational agreement that is not validated as provided by this subchapter is unenforceable, regardless of whether the agreement is in a record.” Parentage then falls back to the default rule in § 160.201(a)(1) — the mother-child relationship is established by the woman giving birth to the child. That is precisely the argument the surrogate’s attorney is making. In Texas, if you give birth here, you are the mother unless a properly validated agreement says otherwise. One caution: § 160.762(c) still allows an intended parent under an unvalidated agreement to be held liable for child support.

Question Three: Which State’s Court Wins?

Custody jurisdiction between states runs through the Uniform Child Custody Jurisdiction and Enforcement Act, adopted at Texas Family Code Chapter 152. Jurisdiction generally follows the child’s home state, and § 152.102 defines that for a newborn as “the state in which the child lived from birth” — not six months, because a newborn has not lived anywhere for six months. This baby was born in Texas and has remained in Texas for treatment.

Emergency jurisdiction on top of that

Section 152.204(a) gives a Texas court temporary emergency jurisdiction when the child is present in the state and it is necessary in an emergency to protect the child. A newborn needing open-heart surgery, with a dispute over whether he receives it, is the textbook case. That is why a California parentage judgment does not automatically override what a Texas court decides about custody here.

Why California reaches a different answer

California uses an intent test: in Johnson v. Calvert, 5 Cal. 4th 84 (1993), the California Supreme Court held that where a valid surrogacy contract exists, the parties’ intent — not who gave birth — determines legal parentage. That framework was never designed for a case where the contract’s own terms collide with another state’s criminal law, because California does not restrict abortion the way Texas does. This case is falling straight into that gap.

Three Things to Do Before You Sign Anything

• Strike or ignore any termination clause — and get advice anyway. In Texas a clause requiring an illegal act is void, and § 160.754(g) bars limits on the gestational mother’s health decisions. Do not let a six-figure damages threat convince you otherwise.
• File the validation petition before the transfer. Under §§ 160.754(e), 160.755, and 160.756, that single filing is what makes the agreement enforceable and attaches the intended parents’ rights. Skip it and § 160.762(a) makes the entire agreement unenforceable.
• Put every communication in writing from day one. Texts, emails, and portal messages about medical decisions and expenses all become evidence. If you are in a dispute now, talk to a lawyer before you respond to anything; BJ Kemp is licensed in Texas and Michigan and handles cases that cross state lines.

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