Surrogate's Bodily Autonomy Should Not Override Intended Parents' Legal Parenthood
Source: Evelyn Tenenbaum. "The Supreme Court is being asked to intervene in a dramatic Texas surrogacy battle.." September 17, 2026. slate.com
The Gist
A surrogate who refused to have an abortion is now trying to gain custody of the baby she carried, arguing that the biological parents lost their parental rights simply by asking her to terminate the pregnancy after a serious diagnosis. The author argues the Supreme Court should reject this claim because the parents are the child's genetic parents who never abandoned their responsibilities, and a woman's right to control her pregnancy shouldn't be confused with a rule that determines who legally counts as a parent.
Conclusion
The Supreme Court should reject McKenna West's request to strip Gilkar and Ahmed of their parental rights, because a surrogate's refusal to terminate a pregnancy—or the intended parents' earlier request that she do so—does not transform the surrogate into the child's legal parent or negate the intended parents' parental rights after birth.
Premises
- A surrogate has the right to control her own body during pregnancy, including the right to refuse an abortion, but this bodily autonomy is a separate legal question from who the child's parents are after birth.
- West provided no genetic material for the child; the embryo was created from Gilkar and Ahmed's own genetic material, making them the child's biological parents.
- The surrogacy agreement was explicitly premised on the understanding that Gilkar and Ahmed, not West, would be the child's parents.
- Gilkar and Ahmed acted consistently with parental responsibility after birth by assuming custody, providing medical care, and agreeing to surgeries for the child.
- Treating an earlier request for termination as grounds for forfeiting parental rights would improperly convert a reproductive-decision dispute into a rule governing parenthood itself.
- Other jurisdictions (e.g., New York's Child-Parent Security Act) have successfully balanced surrogate bodily autonomy with intended parents' legal rights, showing the two principles are not mutually exclusive.
- A prior similar case (Crystal Kelley) did not result in the surrogate becoming a legal parent against the intended parents' arrangement, though the outcome there involved a different resolution (adoption).
Assumptions
- Legal parenthood should be primarily determined by genetic connection and pre-birth contractual intent rather than gestational or caregiving relationship.
- It is possible and desirable to legally separate a woman's bodily autonomy during pregnancy from questions of post-birth parental rights.
- The intended parents' actions after birth (assuming custody, seeking medical care) are sufficient evidence that they did not intend to abandon parental rights.
- Contractual agreements about pregnancy termination are morally and legally relevant to structuring surrogacy but should not be weaponized against the parents who made them.
- The Supreme Court has a legitimate role in preventing a lower court/state ruling that could set a precedent conflating reproductive requests with parental fitness.