How A Surrogacy Nightmare Exposed America’s Fractured Abortion Law Depravity

The birth of a child is supposed to be one of the happiest moments of a parent’s life. In the case of McKenna West, it’s been a legal nightmare. After she was hired as a surrogate mother, West’s pregnancy became controversial when she fled to Texas out of fear of a forced abortion.

The dispute stems from a California couple enlisting an Alaska-based nurse, McKenna West, to be the surrogate for their child. That arrangement broke down when West fled to Texas, claiming the couple started pressuring West to have an abortion when their unborn child was diagnosed with a life-threatening heart condition. Texas Attorney General and Senate candidate Ken Paxton intervened on behalf of the child, who has since been born in Texas. However, a court-issued restraining order prevents West from seeing the child.

Differences in Texas and California abortion law are causing the legal dilemma. In California, the law states that abortion is legal up to the point of fetal viability or at any point if the mother’s life or health is at risk. In Texas, abortion is banned except in cases where the mother’s life is threatened. Thus, by going to Texas, West could not be forced to have an abortion, nor would Texas cooperate in any effort to return her to a state to undergo a procedure Texas bans. After all, Ms. West did not kill anyone. On the contrary, she fled to Texas to avoid that.

This type of legal conundrum is the inevitable consequence of the overturning of Roe v. Wade in 2022. The Supreme Court concluded it is up to the states to craft their own laws on abortion, with many states enacting restrictions or outright bans while others passed laws to ensure its legality. Despite the protections, people are finding ways around the bans. We are already seeing the rise of “abortion tourism”: cases of women leaving states where abortion is banned and going to states where it is legal.

Abortion has long been a source of controversy, but surrogacy is a more recent debate. For couples with fertility problems, surrogacy offers a path to becoming parents. Some surrogates are friends or family helping out a loved one, but the practice becomes more controversial when it becomes commercialized. There are now companies that set up potential parents with a surrogate at the cost of tens of thousands of dollars. Thus, people like Ms. West can make extra money at the cost of renting out their womb to a stranger who may not have the ability to get pregnant themselves.

Commercial surrogacy is rife with ethical criticisms, not least of which is the commodification of children, with thousands of dollars changing hands. Billboards around the country offer upwards of $50,000 to prospective surrogates. How a society treats children says a lot about it. So what does it say when children are effectively being sold, almost 200 years after that indefensible practice ended?

At the very least, there are risks to the children in surrogacy cases, especially if the child becomes unwanted at some point during the pregnancy, as we see in West’s case, linked to the sovereignty of the surrogate mother. If the biological parents want to abort the child, where does that leave the surrogate? This is especially true in cases where you have pro-choice parents but a pro-life surrogate. You cannot force someone to have an abortion, but that becomes complicated in cases like McKenna West.

If we are going to continue having paid surrogacy in this country, there needs to be stronger protections for surrogate mothers. Pro-life surrogates have to be protected from any attempts to force them into having an abortion. While forced abortion is illegal at the federal and state levels, it may be wise to clarify the law to include cases where the surrogate is not biologically related to the child they are carrying.

The unborn child needs protection as well. While SCOTUS returned abortion policy to the states, it has not commented on legal protections for surrogate children. If parents decide they don’t want the child, the unborn child should be treated as a child given up for adoption. Doing so protects the child’s life and the surrogate mother from any coercion.

The case of McKenna West is exposing some of the moral ambiguities surrounding surrogacy for pay. While some argue that paid surrogacy is inherently unethical, at the very least, protections are needed for both the child and the surrogate. Doing so benefits the unborn and the country as a whole.

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Matt Cookson is an alumnus of the Young Voices Contributor Program and was a Middle East History and Policy Fellow with Young Voices. He also works in the supply chain for a U.S. Defense Contractor. His commentary has appeared in the Mises Institute, RealClearPolitics, the National Interest, Providence Magazine, China Source, and the Idaho Freedom Foundation. You can follow him on X @MattCookson95 and Substack @thewaythecookiecrumbles.