Are you my mother? This is the question I imagine the recently born baby at the center of a highly publicized surrogacy case must be asking himself. The question reminds me of a children’s book my mother read to me when I was young titled Are You My Mother? by P.D. Eastman, where a baby bird hatches out of its egg while its mother looks for food. The baby bird escapes the nest and begins questioning a kitten, a hen, a cow, and inanimate objects such as a car if these things are the bird’s mother. Similarly, the issue of a baby saved by a brave surrogate who escaped to Texas to allow him to live has raised the question of who can be the legal parent of a baby born through surrogacy. Texas law supported surrogate mother McKenna West when she relied on her intuition that the baby inside her could be saved through a medical procedure and deserved the right to live. The Texas Attorney General agreed that the baby could and must be saved, and not hastily aborted like the biological parents wanted. Now that the baby – named by the surrogate “Baby Gabriel” – has been born, the surrogate believes that she is in the best interest of the child and is the rightful parent. While McKenna West is correct in her instincts of Texas pro-life laws, the issue of her keeping Baby Gabriel is more complicated. Science and truth reveal not only the dignity of life but how life is created. Like an abandoned baby bird egg, every life has its clear origin.

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According to an Op-Ed by the surrogate mother McKenna West, the story began when she agreed to be a surrogate for a couple in California last year.[1] At about twenty weeks gestation, McKenna learned that the baby she was carrying was diagnosed with hypoplastic left heart syndrome, which she knew was treatable because of her experience as a cardiac nurse.[2] Despite the fact that the baby had a high chance of survival, the donor couple wanted to abort the baby.[3] McKenna claims that she found a hospital in Texas that could successfully perform the Norwood procedure.  There were limited options for the Norwood procedure in Alaska where she lives or in California where the biological parent couple lives. However, it is notable that McKenna chose Texas because of our strong pro-life laws. Texas has both the Texas Heartbeat Law that saves the life of a baby at the detection of a heartbeat and the Human Life Protection Act, which only allows the termination of a pregnancy in order to save the life of the mother. Thus, it should have come as no surprise that the Texas Attorney General intervened in the issue as the biological parents were preparing to fight legally to end the life of the baby. When McKenna first traveled to Texas and her intentions to save the baby were clear, the biological parents filed a temporary restraining order in Dallas County.[4]

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It is presumed that Texas laws immediately applied to ‘Baby Gabriel’ in order to save his life. Attorney General Paxton argued that the laws also allowed for the baby to continue receiving life-sustaining treatment once he was born. Paxton’s office argued that the physicians have an independent legal obligation to treat the child regardless of the outcome of the parentage of the case.[5] Additionally, AG Paxton argued that emergency life sustaining treatment can be given without parent consent or a court order.[6] In fact, both Texas statutory law and case law recognize no parental right to withhold urgently needed, life sustaining medical treatment from a child who is not terminally ill.[7] Furthermore, a parent cannot direct doctors to let the child die, as was the wish of the biological parents of ‘Baby Gabriel’.[8] The right to override a parent’s refusal to consent to medically indicated treatment belongs to the state of Texas.[9] Thus, the law supported the medical doctors’ decision to continue caring for Gabriel after he was born in Dallas. However, it is important to note that the actions for the hospital to provide both treatment in the womb and after the baby was born were on the side of the State of Texas and the medical doctors. The letters and court documents did not mention McKenna’s rights in regard to her actions to save the child.

 

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The Baby Was Saved, But Who Are the Parents?

McKenna West is a hero. She used her instinct and strong sense of morals to save a baby who had a reasonable chance to live. She respected the dignity of the baby even if he was not perfect and would require extra care. Our instinct tells us that someone like McKenna may even deserve to be the mother of the baby more than the parents who desired perfection or death. McKenna believes the same, but there is just one problem. The baby she carried for twenty weeks is not her baby, biologically or legally.

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In Texas Family Law, there is the legal concept called “The Best Interest of the Child.” This legal standard is often applied when determining conservatorship (parentage) of a child in divorce cases or even in the case of a child needing a guardian. Perhaps McKenna feels that she is acting in the best interest of the baby. She saved the baby’s life and fought for him to receive life-sustaining treatment. Texas law states that in a suit between a parent and a nonparent, it is a rebuttable presumption that:

 

(1) a parent acts in the best interest of the parent’s child and

(2) it is the best interest of a child to be in the care, custody, and control of a parent[10]

 

The first question to ask is “Who are the parents?” Baby Gabriel was conceived through the donation of sperm from one man and an egg from his wife. Once an embryo was created from the egg and sperm in a lab, the embryo was implanted into McKenna. Scientifically, McKenna shares no DNA or biological data with Baby Gabriel. Morally speaking, the Vatican has spoken on the issue from the Biblical truth that human life is created from the self-sacrifice of a man and a woman, in collaboration with the Creator (God).[11]  “It is through the secure and recognized relationship to his own parents that the child can discover his own identity and achieve his own proper human development.”[12]

 

Morally and scientifically speaking, McKenna is not a parent of “Baby Gabriel.” Could she become a rightful guardian? McKenna has asked the U.S. Supreme Court to intervene and allow her to become a conservator for the baby because she believes that the couple will not provide lifesaving care.[13] On September 22, the Supreme Court rejected McKenna’s appeal.[14] The State of California has recognized the biological parents as the legal parents. But what does Texas law say about a nonparent becoming a child’s conservator?

 

“In a suit between a parent and a nonparent, the nonparent may overcome the presumption under Subsection (b) by proving by clear and convincing evidence that denial of the relief requested by the nonparent would significantly impair the child’s physical health or emotional development.” [15]

 

Clear and convincing evidence is not a very high legal standard to meet. Nevertheless, the threat to Baby Gabriel’s life may no longer remain. The biological parents are now willing to take care of the baby and have begun “preparing for the baby’s extensive needs.”[16] The biological parents’ counterclaim is that prolonging the legal battle actually prohibits the baby from getting the medical treatment he needs in California. Unfortunately for McKenna, her case to keep “Baby Gabriel” may not be strong enough. It appears the U.S. Supreme Court agrees, though no reasoning for its decision was offered.

 

Ultimately, the exciting saga of “Baby Gabriel” (or Baby Amir, the name given by the biological parents) raises novel legal and ethical questions about surrogacy. But at the end of the day, the true focus should be on the baby. Babies should not be bought and sold. But babies are also not the consolation prize for good acts. It’s important that when the baby boy asks, “Are you my mother?” that he has a clear answer to that question.

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[1]McKenna West, I’m the surrogate mother trying to save a baby’s life — but the biological parents wanted an abortion, Head Topics (August 20, 2026, at 03:35 MT), https://us.headtopics.com/news/i-m-the-surrogate-mother-trying-to-save-a-baby-s-life-but-86823845.

[2] Id.

[3] Id.

[4] N.G. & O.A. v. M.W., NO. DF-26-09446 (301st Dist. Ct., Dallas County, Tex. Aug. 11, 2026) (order granting temporary restraining order and order setting hearing).

[5] Texas AG Fights to Save Unborn Baby With Treatable Heart Defect, Dallas Express (Aug. 11, 2026), https://dallasexpress.com/state/texas-ag-fights-to-save-unborn-baby-with-treatable-heart-defect/.  

[6] Letter from Johnathan Stone, Chief, Consumer Protection Division, Off. of Att’y Gen. of Tex., to David Lein et al. (Aug. 10, 2026).

[7] HCA, Inc. v. Miller, 36 S.W.3d 187, 192–93 (Tex. App.—Houston [14th Dist.] 2000), aff’d, 118 S.W.3d 758 (Tex. 2003).

[8] Id.

[9] T.L. v Cook Children’s Medical Center, 607 S.W. 3d 9, 55–56 (Tex.App. – Fort Worth 2020, pet. denied).

[10] Tex. Fam. Code § 153.002(b)(1)– (2).

[11]Courtney Mares, Pope Calls Surrogacy Deplorable ... and Calls for It’s Global Prohibition. He made the Call January 8 to world Diplomats, Inside the Vatican (Mar. 1, 2024),  https://insidethevatican.com/magazine/pope-calls-surrogacy-deplorable/.

[12] Id.

[13] Amber Kite, Alaskan Surrogate Asks U.S. Supreme Court to Intervene in Texas Custody Battle Over Baby With Heart Defect, MSN (Sept. 14, 2026), https://www.msn.com/en-us/news/other/alaskan-surrogate-asks-us-supreme-court-to-intervene-in-texas-custody-battle-over-baby-with-heart-defect/ar-AA2ccize?ocid=BingNewsVerp, accessed September 23, 2026.

[14] Maureen Grope, Supreme Court Rejects Appeal rom Surrogate in High-Profile Custody Fight, MSN (Sept. 23, 2026), https://www.msn.com/en-us/news/other/supreme-court-rejects-appeal-from-surrogate-in-high-profile-custody-fight/ar-AA2cM3CB?ocid=BingNewsSerp.

[15] Tex. Fam. Code § 153.002(c)

[16] James Gordon, Parents Launch Astonishing Attack on Surrogate who Refused Their request to Abort Baby, MSN (Sept. 19, 2026), https://www.msn.com/en-gb/news/other/parents-launch-new-attack-on-surrogate-who-refused-their-request-to-abort-baby-over-heart-defect/ar-AA2cxz9A?ocid=BingNewsSerp.

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