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Cook v. Harding

United States Court of Appeals, Ninth Circuit

January 12, 2018

Melissa Kay Cook, Individually; Melissa Kay Cook, as Guardian Ad Litem of Baby A, Baby B, and Baby C, Plaintiffs-Appellants,
v.
Cynthia Anne Harding, M.P.H., Director of the Los Angeles County Department of Public Health, in her official capacity; Jeffery D. Gunzenhauser, M.D., M.H.P., Health Officer and Medical Director for the Los Angeles County Department of Public Health; Dean C. Logan, Registrar-Recorder/County Clerk for Los Angeles County in his official capacity; Edmund G. Brown, Jr., Governor of the State of California; Karen Smith, M.D., M.P.H., Director and State Public Health Officer for the California Department of Public Health; C. M., an adult male believed to be the genetic father of Baby A, Baby B and Baby C; Kaiser Foundation Hospital; Panorama City Medical Center; Payman Roshan, Senior Vice President and Patient Administrator of Panorama City Medical Center; Xavier Becerra, [*] Attorney General, Defendants-Appellees.

          Submitted November 9, 2017

         Appeal from the United States District Court for the Central District of California No. 2:16-cv-00742-ODW-AFM Otis D. Wright II, District Judge, Presiding

          Harold J. Cassidy (argued), Joseph Zakhary, and Thomas J. Viggiano, The Cassidy Law Firm, Shrewsbury, New Jersey; Michael W. Caspino and Robert M. Dato, Buchalter Nemer, Irvine, California; for Plaintiffs-Appellants.

          Daniel P. Barer (argued), Pollak Vida & Fisher, Los Angeles, California, for Defendants-Appellees Cynthia Anne Harding, M.P.H.; Jeffery D. Gunzenhauser, M.D., M.H.P.; and Dean C. Logan.

          Robert R. Walmsley (argued) and Marlea F. Jarrette, Jarette & Walmsley LLP, Los Olivos, California, for Defendant-Appellee C.M.

          Chara L. Crane (argued), Deputy Attorney General; Jennifer M. Kim, Supervising Deputy Attorney General; Julie Weng-Gutierrez, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Defendants-Appellees Edmund G. Brown, Jr. and Karen Smith, M.D., M.P.H.

          Dean Masserman, Vorzimer/Masserman - Fertility & Family Law Center, Woodland Hills, California, for Defendants-Appellees Kaiser Foundation Hospital, Panorama City Medical Center, and Payman Roshan.

          Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Wiley Y. Daniel, [**] District Judge.

          OPINION

          REINHARDT, Circuit Judge:

         SUMMARY [***]

         Civil Rights

         The panel affirmed, on issue preclusion grounds, the district court's dismissal of an action challenging the constitutionality of California Family Code Section 7962, which codified California cases that found gestational surrogacy contracts enforceable.

         The panel first held that the district court was wrong to abstain from hearing this case under Younger v. Harris, 401 U.S. 37 (1971). The panel held that this case did not fall within the two limited categories of civil cases that define Younger's scope, as set forth in Sprint Commc'ns., Inc. v. Jacobs, 134 S.Ct. 584, 593-94 (2013). Thus, the panel determined that plaintiff's then pending state court constitutional challenge to Section 7962 was neither a civil enforcement proceeding, nor was it within the category of cases that involve the State's interest in enforcing the orders and judgments of its courts.

         The panel affirmed the district court on the basis that the subsequent state court decision on the merits of plaintiff's constitutional claims precluded further litigation of the issues in federal court. The panel stated that it was required to give the same preclusive effect to a California Court of Appeal's judgment involving plaintiff's claims as California courts would. The panel determined that given the Court of Appeal's thorough and well-reasoned opinion, which addressed each of plaintiff's constitutional challenges, there was no question that the constitutional claims were necessarily decided in the state court proceeding.

         The California legislature enacted California Family Code Section 7962 ("Section 7962") to codify California cases that found gestational surrogacy contracts enforceable.[1] Among other matters, Section 7962 authorizes the judicial determination of legal parentage in accordance with the terms of a gestational surrogacy agreement prior to the birth of any child so conceived.

         Melissa Cook entered into a gestational surrogacy agreement with C.M. pursuant to Section 7962. By the terms of the 75-page contract, titled "In Vitro Fertilization Surrogacy Agreement" ("Agreement"), Cook agreed to the implantation of embryos created with ova from an anonymous woman and sperm from C.M., to carry any pregnancy to term, and to surrender upon birth the child or children to C.M. Under the contract, Cook's parental rights would be terminated by court order prior to the birth of any child or children in accordance with Section 7962, and C.M. would be declared the only legal parent. Following the embryo transfer, Cook became pregnant, and eventually learned that she was carrying three ...


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