Attorneys for Alaska cardiac nurse McKenna West filed an emergency application Wednesday, asking Justice Elena Kagan to temporarily block a court ruling that declared the California couple the baby’s legal parents.
Kagan handles emergency matters arising from the , which includes California. She has not ruled on the request.
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The baby was born in Texas on Aug. 12, with hypoplastic left heart syndrome, or HLHS, a rare condition in which the left side of the heart is severely underdeveloped.
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The legal war began after the condition was detected during a . West alleges Gilkar and Ahmed asked her to terminate the pregnancy under a provision in their surrogacy agreement covering serious fetal abnormalities.
West refused, telling the surrogacy agency she could not abort "this precious baby" after feeling him move and learning treatment was available, according to the filing.
She offered to raise the child herself or arrange an adoption if the couple no longer wanted him, while allowing them to walk away from any further financial obligations.
Her attorneys allege West was then warned that continuing the pregnancy could expose her to more than $250,000 in financial penalties.
The Los Angeles Superior Court determined that West had effectively consented to its authority by submitting a 147-page filing that addressed the "substance of the issues," according to the application.
West’s lawyers said most of those pages were exhibits supporting her jurisdictional challenge and that she had repeatedly refused to argue the underlying case.
"Any reasonable view of consent would recognize that ‘no’ does not mean ‘yes,’" they wrote.
West also claims she was never properly served. Her filing says a FedEx package containing the court papers was delivered to her babysitter, who allegedly was not told what was inside.
The California court declared Gilkar and Ahmed the baby’s legal parents June 22, and West failed to persuade three state courts to put the ruling on hold.
SURROGATE GIVES BIRTH IN TEXAS TO BABY WITH HEART DEFECT AFTER PARENTS REQUESTED ABORTION
The fight then moved to , where West traveled so the baby could be delivered at a hospital equipped to treat his condition.
Texas Attorney General Ken Paxton secured an emergency order before the birth directing the hospital to provide and preventing the child from being removed from the state.
West previously said she had only about while his umbilical cord was still attached before he was taken from her. A court order later barred her from seeing or holding him.
The baby underwent the first of three anticipated Aug. 17. He was later returned to a breathing tube after his condition declined, according to court filings previously reviewed by Fox News Digital.
Gilkar said during a hearing last month that the couple had remained at their son’s bedside and accused West of trying to take him.
"He’s our child," Gilkar said, according to "He’s the love of our lives. "
She also told the court the newborn was "suffering a lot" as he struggled to breathe, choked on tubes and required a blood transfusion following surgery, according to the AP.
West has said she would abandon her custody effort if a court determined the intended parents were committed to providing the child with life-saving care.
But on Sept. 2, a Texas judge upheld the California ruling and removed West from the case. Paxton has also stepped away from the legal fight.
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The couple previously agreed to the baby’s first surgery and said they would approve life-saving care if doctors determined he was a candidate.
West is now asking the Supreme Court to temporarily block the California ruling, which could give her a path back into the Texas case. Her attorneys argue the dispute raises a broader constitutional question over whether challenging a court’s authority can itself be treated as accepting that authority.
Without Supreme Court intervention, her attorneys warned, West will remain shut out of decisions and updates about the baby’s condition as the appeals process plays out.
"Unless this Court provides relief from that judgment, M.W. will have no access to information about Baby G.’s condition," West’s attorneys wrote.
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They argued that a victory later could come too late to protect the child.
"Relief later in Texas proceedings may only restore her right to protect a child that has already passed," the filing states.
Fox News’ Shannon Bream and Bill Mears contributed to this report.