Melissa Kay Cook, Individually; Melissa Kay Cook, as Guardian Ad Litem of Baby A, Baby B, and Baby C, Plaintiffs-Appellants,
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
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
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.
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.
R. Walmsley (argued) and Marlea F. Jarrette, Jarette &
Walmsley LLP, Los Olivos, California, for Defendant-Appellee
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.
Masserman, Vorzimer/Masserman - Fertility & Family Law
Center, Woodland Hills, California, for Defendants-Appellees
Kaiser Foundation Hospital, Panorama City Medical Center, and
Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit
Judges, and Wiley Y. Daniel, [**] District Judge.
REINHARDT, Circuit Judge:
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.
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.
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.
California legislature enacted California Family Code Section
7962 ("Section 7962") to codify California cases
that found gestational surrogacy contracts
enforceable. 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.
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 ...