The McKenna West Case: Bodily Autonomy, Parentage and What Surrogacy Agreements Can and Cannot Do
In 2026, the McKenna West surrogacy case has attracted national attention because it touches on some of the most difficult issues that can arise in surrogacy: termination of pregnancy, bodily autonomy, legal parentage, and who has the right to make medical decisions for a child after birth.
When I first wrote about this case, my focus was on a basic principle that I believe was getting lost in some of the reporting:
Surrogacy Contracts Cannot Take Away a Woman’s Right to Make Decisions About Her Own Body
There has been a great deal of reporting about the case involving McKenna West, an Alaska gestational carrier who declined to terminate a pregnancy after the baby was diagnosed with a serious heart condition and ultimately delivered the baby in Texas.
I think some of the reporting misses an important point about how surrogacy actually works.
Before a pregnancy ever begins, the gestational carrier and intended parents discuss difficult issues, including their views regarding termination. Those discussions are documented in the surrogacy agreement so everyone understands each other’s intentions before moving forward. Both parties were represented by independent legal counsel.
But agreeing about intentions is not the same thing as surrendering bodily autonomy.
This is really no different from any other couple having a baby. A husband and wife wanting to create a pregnancy together may agree that they would terminate a pregnancy if their baby were diagnosed with a severe medical condition. They may agree never to terminate. But if circumstances change and they disagree, the pregnant woman (the wife) has the right to unilaterally decide what happens to her body.
A gestational carrier does not lose that fundamental right simply because she is carrying a child for someone else.
Another important reality is that the intended parents are still the legal parents. A disagreement during pregnancy does not simply erase parenthood when the child is born.
Surrogacy agreements are enormously important. They force everyone to discuss these difficult possibilities before pregnancy and document their intentions. But they cannot guarantee that human beings will never change their minds when confronted with circumstances they could only imagine when they signed the agreement.
That isn’t a failure of surrogacy. It is the reality of reproductive autonomy.
The basic principle should not be controversial: a surrogacy agreement can document a gestational carrier’s intentions. It cannot make someone else the final decision-maker over her body.
What Happened Next
The baby was born in Dallas on August 12 with hypoplastic left heart syndrome, a life-threatening congenital heart condition requiring significant medical treatment. West sought conservatorship in Texas to gain authority over the baby’s medical care. The intended parents maintained that they were the child’s legal parents and should make those decisions.
This is where two issues often discussed together became legally distinct.
During the pregnancy, West controlled decisions involving her own body. After the baby was born, however, the question was no longer who could make decisions about West’s body. The question was who the child’s legal parents were and who therefore had authority to make medical decisions for the child.
California courts had recognized the intended parents’ parental rights. California law provides a specific legal process for establishing parentage in gestational carrier arrangements, including when the parties later disagree about parentage.
On September 2, 2026, the Texas court ruled against West’s request for sole conservatorship and dismissed her as a party, effectively giving effect to the California determination of the intended parents’ parental rights.
The Baby’s Medical Care Became Central to the Texas Proceedings
West had expressed concern that the intended parents might not pursue life-sustaining treatment for the child. But subsequent proceedings provided important information about the baby’s actual medical care.
According to filings described by the Texas Supreme Court, the baby’s Texas physician recommended transferring the child from the Texas ICU to an ICU in California. The physician said the transfer was in the child’s best interest and that it should occur within a limited window.
The child’s court-appointed guardian also reported that the intended parents had followed the doctors’ recommendations and that the medical team had no concerns regarding their medical decision-making. The report states that the parents agreed to the recommended treatment.
Despite all this, West attempted to prevent the child from being transferred to California. On September 17, the Texas Supreme Court denied her request for temporary relief.
The court emphasized that sustaining the life of the medically fragile child was the paramount concern and pointed specifically to the unrebutted testimony of the child’s Texas physician who supported and recommended a transfer to California. The court’s order concerned the requested temporary relief; it also stated that the underlying petition remained pending and did not foreclose future relief if circumstances changed.
The Case Then Reached the United States Supreme Court
West then sought emergency relief from the United States Supreme Court, asking the Court to block the California ruling while she continued her legal challenge. On September 22, Justice Elena Kagan denied West’s application. The order did not explain the denial.
It is important to be precise about what that means.
The United States Supreme Court did not issue a substantive ruling establishing new surrogacy law or decide the broader questions raised by this case. Justice Kagan denied the emergency application. The California couple therefore maintained custody and authority over their child’s medical care.
Two Rights Can Exist at the Same Time
To me, this remains the most important lesson from this case. A gestational carrier can have the absolute right to make decisions involving her own body during pregnancy without becoming the child’s legal parent after birth.
Those concepts are not contradictory. When West declined to terminate the pregnancy, the intended parents could not simply force her to undergo a medical procedure because a surrogacy agreement documented different intentions. But West’s decision to continue the pregnancy also did not automatically give her parental rights over the child she was carrying.
Once the baby was born, medical decisions concerning the child belonged to the people legally recognized as the child’s parents, subject, of course, to the same laws governing parental medical decision-making that apply to other parents.
That distinction is extraordinarily important.
What This Means for Surrogacy Agencies
There is another aspect of this case that concerns me: the potential exposure for the agency that brought the parties together.
An agency can screen intended parents and gestational carriers, facilitate discussions about difficult issues such as termination, and make sure those issues are addressed before a match moves forward. The parties can then work with their independent attorneys to document their intentions in a surrogacy agreement.
But an agency cannot predict or guarantee how another human being will respond months later when confronted with an actual medical crisis.
A gestational carrier may sincerely believe when she enters an agreement that she would terminate under certain circumstances and later find that she cannot. Intended parents may also change their views when faced with a diagnosis involving their own child. That does not necessarily mean that the screening or matching process failed.
Agencies should have thorough procedures to identify whether the parties are compatible on these issues and should document those conversations. But there is an important distinction between confirming someone’s intentions at the time of a match and guaranteeing their future behavior. No agency can make that guarantee.
Cases like this are therefore potentially dangerous for agencies if, with the benefit of hindsight, an agency is blamed simply because one party later made a decision inconsistent with what they had previously expressed or agreed to.
The agency’s responsibility should be to have a thoughtful, documented process for screening, disclosure, and matching. It should not be to guarantee that human beings will never change their minds.
What This Case Should Teach the Surrogacy Community
This case should not lead us to conclude that surrogacy agreements are ineffective. Quite the opposite. Good surrogacy agreements matter because they require people to confront extraordinarily difficult questions before an embryo is transferred.
- What would we do if a fetus were diagnosed with a severe abnormality?
- Under what circumstances would we consider termination?
- What are our views regarding life-sustaining treatment?
- What happens if our views change?
These conversations matter enormously. Agencies, attorneys, mental health professionals, intended parents, and gestational carriers should take them seriously. But no contract can eliminate every human conflict.
People can sincerely agree about a hypothetical situation and react differently when that hypothetical becomes their reality.
The purpose of screening, counseling, independent legal representation, and detailed agreements is to reduce the likelihood of these conflicts and make everyone’s intentions as clear as possible. It is not to pretend that a contract, an attorney, or a surrogacy agency can control every decision that may arise during a pregnancy.
The McKenna West case illustrates both sides of that principle.
- During pregnancy, a gestational carrier retains control over her own body.
- After birth, bodily autonomy should not be confused with parentage. The people legally determined to be the child’s parents have the rights and responsibilities that come with parenthood.
An agency that appropriately screens the parties, explores their positions on termination, and facilitates a match based on the information provided should not be expected to predict or guarantee how either party will respond when faced with circumstances no one hoped would ever occur.
Surrogacy involves extraordinarily personal decisions. Good practices, good screening, and good contracts can reduce risk. They cannot eliminate human unpredictability.
