Cook v. Harding Dismissal Order

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 1 of 24 Page ID #:2159
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United States District Court

Central District of California
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MELISSA KAY COOK, individually and

as Guardian Ad Litem of BABY A, BABY
B, and BABY C,
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ORDER GRANTING
Plaintiff,
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Case 2:16-cv-00742-ODW (AFM)
DEFENDANTS MOTIONS TO
v.
DISMISS [44, 46, 54, 60]
CYNTHIA ANNE HARDING; JEFFREY

D. GUNZENHAUSER; DEAN C.
LOGAN; EDMUND G. JERRY BROWN,
JR.; KAREN SMITH; KAISER
FOUNDATION HOSPITAL;
PANORAMA CITY MEDICAL
CENTER; PAYMAN ROSHAN; and
C.M.,
Defendants.
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I.
INTRODUCTION
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Plaintiff Melissa Kay Cook (Cook), individually and as Guardian Ad Litem
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for Babies A, B, and C, brings suit against Governor Jerry Brown, Karen Smith
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(Director and State Public Health Officer for the California Department of Public
Health), Cynthia Harding (Director of Los Angeles County Public Health
Department), Jeffrey Gunzenhauser (Medical Director for Los Angeles County Public
Health), and Dean Logan (Registrar-Recorder for Los Angeles County) in their
official capacities, as well as Kaiser Foundation Hospital, Panorama City Medical
Center, Payman Roshan (Senior Vice President and Patient Administrator for
Panorama City Medical Center), and C.M. (the genetic father and intended parent of
Babies A, B, and C).
Cook brings as-applied and facial constitutional challenges under 28 U.S.C.
1983, alleging that California Family Code section 7962, the enabling statute
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affording protection to surrogacy contracts in the state, violates the Substantive Due
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Process, Procedural Due Process, and Equal Protection rights of surrogate mothers
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and the children they carry to term. She seeks declaratory and injunctive relief.
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(Second Amended Complaint (SAC), ECF No. 25.)
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Now before the Court are four Motions to Dismiss. (ECF Nos. 44, 46, 54, 60.)
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Each asks this Court to refrain from retaining jurisdiction over Cooks case based on
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myriad abstention and jurisdictional doctrines. Because the Motions raise similar
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arguments, the Court will address all four in this Order. For the reasons discussed
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below, the Court finds it necessary to abstain, and accordingly GRANTS dismissal of
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the matter in its entirety with prejudice under Rule 12(b)(1).
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II.
FACTUAL BACKGROUND
A. Surrogacy Contracts in California
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At the heart of Cooks claims lies the Family Code provision that allows for the
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enforceability of surrogacy contracts in California. (SAC 1.) However, in order to
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understand the current scientific and legal landscape in which Cook and the
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Defendants find themselves, a history lesson is appropriate.
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In 1975, California adopted the Uniform Parentage Act in an effort to eliminate
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the legal distinction between legitimate and illegitimate children. See Johnson v.
Calvert, 5 Cal. 4th 84, 8889 (1993). In the wake of several Supreme Court decisions
mandating the equal treatment of children regardless of the marital status of their
parents, the Act instead based parent and child rights on the existence of a parent-child
relationship, rather than on the marital status of the parents. See id. (citing Levy v.
Louisiana, 391 U.S. 68 (1968)) (state could not deny illegitimate children the right to
bring a tort action for wrongful death of the parent if it gave a legitimate child the
same right); Glona v. Am. Guarantee Co., 391 U.S. 73 (1968) (state could not deny
the parent of an illegitimate child the right to bring a tort action for wrongful death of
a child if it gave the parent of a legitimate child the same right).
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The Act became part 7 of division 4 of the California Civil Code, sections
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70007021, defining the parent and child relationship as the legal relationship
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existing between a child and his natural or adoptive parents incident to which the law
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confers or imposes rights, privileges, duties, and obligations, and applying the
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definition equally to every child and to every parent, regardless of the marital status
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of the parents. Cal. Civ. Code 70017002. Under state law, the parent and child
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relationship would thus encompass two kinds of parents, both natural and
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adoptive. Id.; see also Calvert, 5 Cal. 4th at 89.
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The Act, of course, did not imagine the myriad ways in which technology and
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human ingenuity would expand our notions of family and parentage. Louise Brown,
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the first human to be born via in vitro fertilization, or IVF,1 was born three years after
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California adopted the Act; the first American born via IVF was born in 1981.2
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Today, nearly two percent of all children born are conceived through IVF or other
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IVF refers to the complex series of procedures used to treat infertility. First, mature human ova, or
eggs, are collected from a womans ovaries and fertilized by male sperm in a laboratory setting. The
now-fertilized embryo is then implanted into the female uterus, where it ideally will mature into a
healthy baby. Mayo Clinic Staff, In vitro fertilization (IVF), Mayo Clinic,
http://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/basics/definition/prc-20018905
(last visited June 3, 2016).
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Walter Sullivan, First Test-Tube Baby Born in U.S., Joining Successes Around the World, N.Y.
Times (Dec. 24, 1981), http://www.nytimes.com/learning/general/onthisday/big/1228.html#article.
forms of assisted reproductive technologies.3
twenty-first century notion of the family, several children are born not from their
mother, but from a third party surrogate. Surrogacy, however, is nothing new; would-
be parents yearning for a child of their own have enlisted the help of others since
biblical times.4 Coupling the help of a third party surrogate and IVF technology, a
woman may bear a child with whom she has no genetic relationship.5
thousands of children are born through surrogacy arrangements.6 In Calvert, the
California Supreme Court held that such arrangements are permissible and that, in
Adding an additional layer to the
Today,
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Karen Caplan, More than 1.5% of American babies owe their births to IVF, report says, L.A.
Times (Mar. 3, 2015), http://www.latimes.com/science/sciencenow/la-sci-sn-ivf-live-births-successrate-20150303-story.html.
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See Genesis 16:2 (And Sarai said unto Abram, Behold now, the LORD hath restrained me from
bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her. And Abram
hearkened to the voice of Sarai.); Genesis 30:3 (And [Rachel] said, Behold my maid Bilhah, go in
unto her; and she shall bear upon my knees, that I may also have children by her.).
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This does not mean all surrogates are, or must be, strangers. For example, gay couples wishing to
pass along the genetic traits of both fathers may seek the help of a sister or cousin, or sisters may
serve as surrogates for their heterosexual brothers. Such arrangements are neither uncommon nor
unrepresented in pop culture. See Adam P. Plant, With A Little Help from My Friends: The
Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical
Advancement, 54 Ala. L. Rev. 639, 642 (2003)
(The following dialogue from the episode [of popular sit-com Friends] where
Phoebe was asked to act as Frank and Alices carrier shows well the human element
incumbent in cases of gestational carrier surrogacy. Upon learning that Frank and
Alice had eloped, Phoebe remarked:
Phoebe: . . . So, I gotta get you a gift now. Is there anything you need?
Frank: Uhh, yeah.
Alice: Weve been trying to get pregnant, uh pretty much ever since we got engaged,
we thought we'd get a jump on things, yknow no ones getting any younger.
Frank: See the thing is umm, were not able to yknow, uh, conceive.
Alice: And weve tried everything, we've seen a bunch of doctors.
Frank: Yeah, and theyand they say that ourthat our only chance to have a baby is
that if they take my sperm, her egg and put it together in a dish and then put it into
another girl. So we were wondering if you could be the girl that we could put it into.
Phoebe: (shocked) Thats a really nice gift. I was thinking of like a gravy boat.)
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The Centers for Disease Control estimates that 19,218 births have resulted from surrogacy
arrangements as of 2010 in California alone, with a nationwide estimate of 137,482. Magdalina
Gugucheva, Surrogacy in America, Council for Responsible Genetics (2010),
http://www.councilforresponsiblegenetics.org/pageDocuments/KAEVEJ0A1M.pdf, at 10.
light of the Uniform Parentage Acts definition of parentage, the intended mother
and not the surrogateshould be deemed a childs mother. 5 Cal 4th at 9097.
Surrogacy arrangements began and continued in California without any
statutory authorization until, in 2012, the California legislature passed the statute at
issue here. 2012 Cal. Legis. Serv. (West). Under section 7962 of the California
Family Code, where a gestational surrogate or carrier7 and the intended parent(s) enter
into a contract that meets certain specifications, and where that contract is presented
before a court, the intended parents will be listed on the issued birth certificate and all
parental rights of the surrogate will be severed. See Cal. Fam. Code 7962. (See also
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SAC 23.)
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Presenting a valid surrogacy agreement to the court rebuts any presumptions
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that the surrogate and her spouse are the legal parents of the child or children. 7962.
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For a surrogacy contract to be valid under the statute, the contract must have the
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following information:
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1. The date the contract was executed;
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2. The names of the persons from which the gametes [ova and sperm] originated,
unless anonymously donated;
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3. The name(s) of the intended parent(s); and
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4. A disclosure of how the medical expenses of the surrogate and the pregnancy
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will be handled, including a review of applicable health insurance coverage and
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what liabilities, if any, that may fall on the surrogate.
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Furthermore, this agreement must be entered into before any embryo transfer
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begins; both the intended parent(s) and the surrogate must be represented by separate,
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California law distinguishes between so-called traditional surrogates and gestational carriers.
A gestational carrier is one who is not an intended parent and who agrees to gestate an embryo that
is genetically unrelated to her, whereas a traditional surrogate is a woman who agrees to gestate an
embryo, in which the woman is the gamete donor and the embryo was created using the sperm of the
intended father or a donor arranged by the intended parent or parents. Cal. Fam. Code
7960(f)(1)(2). Section 7962s failure to mention traditional surrogacy in its framework indicates
that only gestational carrier arrangements, wherein the surrogate has no genetic tie to the fetus(es),
will be afforded legal protection.
independent counsel before executing the agreement; and the agreement must be
signed and notarized. Id.
The statute also establishes that, upon proof of a valid surrogacy agreement, the
court will terminate the parental rights of the surrogate and her spouse without
further hearing or evidence, unless the court or a party to the assisted reproduction
agreement for gestational carriers has a good faith, reasonable belief that the
agreement or accompanying attorney declarations were not executed in accordance
with 7962. Id. Surrogacy contracts will be deemed presumptively valid and
cannot be rescinded or revoked without a court order. Id.
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The statute places no conditions on who can serve as a surrogate (beyond
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requiring that she not be genetically related to the fetuses) or who may solicit the
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services of a gestational carrier.
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intelligence, age, or ability are required for either the surrogate or the intended
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parent(s). (See id. 30, 38.) The statute does not require that the intended parents
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shoulder all costs associated with surrogacy, and only states that the financial
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accommodations necessary for the arrangement are to be detailed in the surrogacy
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contract.
(SAC 39.)
No minimum levels of income,
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B. Cooks Contract and Pregnancy

Cook is a California resident. (Id. 12.)
Cook enlisted the help of Surrogacy
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International, Inc., a California-based surrogacy broker, to offer her services for a
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hopeful family. (Id. 44.) The broker matched her with C.M., though at no point to
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date has Cook ever met C.M. or even spoken with him via telephone. (Id. 45.)
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Cook does not believe that Surrogacy International or the physician who performed
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the embryo transfer, Dr. Jeffrey Steinberg, conducted a home study of C.M.s living
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arrangements to determine his parenting capabilities. (Id. 49, 52.) At the time of
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the embryo transfer, Cook was 47 years old. (Id. 12.) She gave birth to C.M.s
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triplet boys (Babies A, B, and C) on February 22, 2016. (Id. 2.)
The intended parent and genetic father, C.M., resides in Georgia. C.M. is a fifty
year old postal worker who is single, deaf, and lives with his two elderly parents. He
is the biological and legal father of Babies A, B, and C. (See Section 7962 Order,
State Defs. Req. for Judicial Notice (RJN), Ex. B, ECF No. 55.)
The two parties entered into a contract on May 31, 2015 for Cook to serve as a
gestational surrogate, with an anonymous ova donor and C.M. providing the necessary
genetic material.
surrogacy agreement and the brokers owner and attorney, Robert Walmsley, served
as C.M.s counsel. (Id. 50.) As per the surrogacy agreement, C.M. paid Lesa
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(SAC 19, 50.)
Surrogacy International drafted a 75-page
Slaughter of The Fertility Law Firm to represent Cook.
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Cook began the agreed-upon intensive hormone treatment on June 13, 2015, in
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advance of the embryo transfer. (Id. 54.) Knowing of Cooks advanced age and
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C.M.s request that multiple embryos be transferred, on August 17, 2015 Dr.
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Steinberg implanted three six-day-old fertilized male embryos into Cooks uterus. (Id.
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64, 69.) On August 31, 2015, her viable pregnancy with triplets was confirmed.
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(Id. 65.) Up until this point, it appears that neither party to the surrogacy agreement
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had any reservations.
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Cook and C.M.s fractured and tenuous relationship began a few weeks later.
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On September 16, 2015, C.M. emailed Cook and mentioned the possibility of her
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reducing the pregnancy, and asked her how much longer she would have to obtain a
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legal abortion. (Id. 67.) The next day, C.M. emailed the fertility clinic monitoring
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Cooks pregnancy, requesting that Cooks medical visits be less often, because [he]
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gets a bill that costs [him] a lot of money. (Id. 68.) He also expressed his concern
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that he may not be able to afford triplets, or perhaps even twins. (Id.) The clinic
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insisted that Cooks high-risk pregnancy required weekly visits. (Id. 69.) On
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September 18, 2015, C.M. emailed Walmsley at Surrogacy International to reiterate
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his financial concerns about the cost of the medical visits. (Id. 70.) While he said
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that he did not want to reduce two of the pregnancies, his financial situation left him
considering terminating all three pregnancies. (Id.) According to Cook, at this time it
became apparent that C.M. had depleted his life savings paying for the infertility
doctors, surrogacy broker, the anonymous ova donor, the attorneys, and Cooks
surrogate trust account. (Id. 71.)
Over the course of the next week, Cook and C.M. exchanged several emails,
wherein C.M. reiterated that he was concerned about his financial strain. (Id. 73
76.) While Cook offered to care for the three boys for a few months after their birth
so C.M. could financially prepare, on September 22, 2015, C.M. requested that Cook
reduce the pregnancy by one fetus, citing their surrogacy agreements Selective
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Reduction clause. (Id. 75, 77.) Cook refused, citing her anti-abortion beliefs. (Id.
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78.)
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C.M. and the surrogacy broker then attempted to convince Cook to abort one of
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the fetuses. (Id. 79.) C.M. reiterated that he was worried about his financial
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situation, and also stressed that the high-risk pregnancy could jeopardize the health of
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all three fetuses if the pregnancy is not reduced. (Id.) Cook, in turn, stressed that the
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fetuses were all healthy, and was adamant that she would not have an abortion. (Id.)
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On October 28, 2015, C.M. advised Cook via email that he may consider
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looking for adoptive parents for one or more of the children.
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November 12, 2015, Cook responded and said that if he was considering adoption, she
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would happily raise one of the babies herself.
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requested that Cook terminate one of the pregnancies. (Id. 82.) He reiterated his
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request multiple times between November 16, 2015 and November 27, 2015. (Id.
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8384.)
(Id. 81.)
(Id. 80.)
On
Again, C.M. firmly
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After C.M.s September 22 reduction request, Cook contacted Lesa Slaughter,
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the attorney she used when signing the surrogacy contract. (Id. 85.) By the end of
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November 2015, Cook and C.M. were communicating through counsel. (Id. 88.)
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C.M.s attorney informed Cook in writing that, by refusing to reduce, she was in
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breach of the contract and liable for money damages thereunder. (Id.) On November
30, 2015, Cook again emailed C.M. and said she would not terminate any of the
pregnancies, and instead decided that she would raise one of the boys herself. (Id.
90.) C.M. refused to accept that decree and, as the biological parent of the three boys,
said he intended to put one of them up for adoption if she did not terminate. (Id.
91.) Despite their obvious difference of opinion and Cooks firm belief that C.M.
could not adequately care for even one of the Babies, Cook continued the pregnancy
and C.M. continued to pay her medical expenses.
As explained below, C.M. filed the requisite paperwork under section 7962
with the California Childrens Court in January 2016 and, on February 9, 2016, the
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court granted C.M.s petition to terminate Cooks legal relationship with the Babies
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and to name C.M. as the sole parent. (Id. 179, 184; Section 7962 Order.) The
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courts order would then be given to Kaiser Permanentes Panorama City Medical
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Center for its enforcement. (SAC 186.) On February 9, 2016, the date of the
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Childrens Courts 7962 order, Cook informed C.M. that she would no longer accept
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payments from him, claiming it felt wrong to accept payment for carrying the
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Babies. (Id. 93.) As of that date, C.M. still owed Cook $19,000 under the surrogacy
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contract. (Id.)
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The Babies were born prematurely (at 28 weeks gestation) on February 22,
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2016, and they remained in the Neonatal Intensive Care Unit at Panorama City
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Medical Center for seven weeks. (Id. 2, 187.) Cook repeatedly tried to see the
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Babies and obtain their private medical information; for the security of the Babies and
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to ensure C.M.s privacy, Panorama City Medical Center installed additional security
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on Cooks hospital floor. (Id. 8, 20, 19094.)
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III.
PROCEDURAL BACKGROUND
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Cook first filed a Complaint in the Los Angeles Superior Court (Van Nuys) on
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January 4, 2016, alleging state law violations as well as violations of her and the
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Babies Equal Protection and Due Process rights. (SAC 5; C.M. v. M.C., No. BF
054159 (Sup. Ct. Compl.), State Defs. RJN, Ex. A, ECF No. 55.) She also sought
to enjoin C.M. from filing a section 7962 petition before the court ruled on her
constitutional claims. (Sup. Ct. Compl.) On January 6, 2016, C.M. filed a petition
under section 7962 in the California Childrens Court to terminate the parental rights
of Cook and name C.M. as the sole parent of the yet-to-be-born Babies. (Section 7962
Order.)
prejudice, finding that (1) her application for a civil harassment order against C.M.
was filed in the wrong court (it should have been filed in the Childrens Court or
Family Court, not Superior Court), and (2) she did not properly serve her ex parte
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injunctive relief application, and in any event the application was mooted by C.M.s
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January 7, 2016 section 7962 petition. (C.M. v. M.C., No. BF 054159 Minute Order
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(Sup. Ct. Order), State Defs. RJN, Ex. A, ECF No. 55.)
The Superior Court then dismissed Cooks action sua sponte without
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Cook then filed an Answer and Counterclaim to C.M.s petition on February 1,
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2016, as well as an ex parte application to continue the petition hearing on February 4,
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2016; that ex parte application was denied. (Section 7962 Petition Answer, Plf.s
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RJN, Ex. 10, ECF No. 84; Ex Parte Hearing, Plf.s RJN, Ex. 8, ECF No. 84.) On
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February 9, 2016, Judge Amy Pellman of the Childrens Court granted C.M.s petition
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and severed Cooks parental rights. (Section 7962 Order.) Based on her reading of
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section 7962, Judge Pellman barred Cook from raising facts that arose during the
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pregnancy to demonstrate that C.M. would not and should not accept legal
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responsibility for the Babies, and held that the statute did not allow the court to
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consider the best interests of the children or for Cook to offer her opinions concerning
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C.M.s parenting abilities. (SAC 18185.) Cook, in turn, argues that Judge
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Pellman failed to consider her timely filed Answer and Counterclaim, and that she was
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given no opportunity to contest the petition. (Id.)
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On February 2, 2016, after the Superior Courts sua sponte dismissal of her
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Complaint but before C.M.s section 7962 petition was granted, Cook filed suit in this
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Court. (Compl., ECF No. 1.) She has since amended her Complaint twice, and the
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SAC claims that the statute:
1. Violates the Babies substantive Due Process rights by denying them a
relationship with their mother. She further alleges that the Babies have a
Fourteenth Amendment right to be free from being treated as a commodity or
as chattel;
2. Fails to allow for a consideration of the best interests of the Babies, where the
placement of minor children in other custody-related disputes would allow
consideration their interests, and thus violates the Babies Equal Protection
rights. She also claims that 7692 unconstitutionally deems children born to
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surrogates a class of motherless children in violation of the Fourteenth
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Amendment;
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3. Violates her substantive and procedural Due Process rights, as she has a
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fundamental interest in continuing her relationship with the children she bares,
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and that no contract that terminates her parental rights before birth is
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constitutionally enforceable;
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4. Violates her substantive Due Process right to be free from state-authorized
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exploitation of her and her reproductive capacity, and that she has a
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fundamental interest in the best interests of the children she carries;
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5. Fails to provide her with the same treatment as other mothers subject to a
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parental rights termination proceeding, as required by the Equal Protection
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Clause;
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6. Violates the procedural Due Process rights of both herself and the Babies by
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denying them a fact-finding hearing before the termination of their relationship;
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7. Violates the substantive Due Process rights of both herself and the Babies by
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allowing a state-authorized surrogacy contract to expose them to significant
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health risks; and
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8. Violates state and federal laws against servitude and peonage.

(ECF No. 25.)
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Cook seeks injunctive and declaratory relief, and asks the Court to enjoin
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enforcement of section 7962. (Id.) She requests an interim injunction that:
1. Bars the State Defendants from enforcing the 7962 judgment against her;
2. Bars the Hospital Defendants from limiting her access to the Babies;
3. Compels C.M. to provide equal parenting time, restrains him from taking the
children out of state, and:
a. Permanently enjoins him from surrendering custody of any of the
children;
b. Directs him to give Cook permanent custody of one of the Babies; and
c. Requires C.M. to submit to the jurisdiction of the state court system for a
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final custody determination of the other two Babies.
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(Id.)
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On February 23, 2016, Cook appealed Judge Pullmans February 9 judgment.
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(Notice of Appeal, Plf.s RJN, Ex. 14, ECF No. 84.) On March 30, 2016, she filed a
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Petition for Writ of Supersedeas, as well as several ex parte applications to see the
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children at the hospital.
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applications were denied. (Writ Denial, Plf.s RJN, Ex. 18, ECF No. 84.) The Court
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of Appeal initially stayed the case and prohibited all parties from removing the Babies
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from California. (App. Ct. Stay, Plf.s RJN, Ex. 16, ECF No. 84.) However, on April
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14, 2016, the appellate court denied the Writ Petition and lifted the stay. (App. Ct.
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Denial, Plf.s RJN, Ex. 19, ECF No. 84.) That same day, the Babies were released to
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the care of their father, C.M.; they are no longer in the care of Panorama City Medical
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Center. (Hosp. Defs. Mot. 3, ECF No. 60.)
(Writ, Plf.s RJN, Exs. 15, 17, ECF No. 84.)
The
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Pending before the Court now are four Motions to Dismiss. Governor Brown
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and Karen Smith (the State Defendants); Cynthia Harding, Jeffrey Guzenhauser,
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and Dean Logan (the County Defendants); Kaiser Foundation Hospital, Panorama
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City Medical Center, and Payman Roshan (the Hospital Defendants); and C.M. each
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move for dismissal under Federal Rules of Civil Procedure 12(b)(1) and (6). (ECF
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Nos. 44, 46, 54, 60.) Cook filed a timely joint opposition to the State, County, and
Hospital Defendants Motion and a timely, separate opposition to C.M.s Motion.
(ECF Nos. 7475.) Each Defendant tendered a timely Reply. (ECF Nos. 8689.)
Their Motions are now before the Court for decision.
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IV.
LEGAL STANDARD
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court
must dismiss a complaint when it lacks subject matter jurisdiction. Once a party has
moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the
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opposing party bears the burden of establishing the courts jurisdiction. See Kokkonen
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v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Chandler v. State Farm Mut.
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Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Where, as here, a defendant
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makes a facial attack on subject matter jurisdiction, the court must accept the
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plaintiffs allegations as true and draw all reasonable inferences in the plaintiffs favor
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when determining whether the facts alleged are sufficient to establish federal
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jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). Should the
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plaintiff fail to satisfy every element necessary for subject matter jurisdiction, the Rule
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12(b)(1) motion should be granted. Safe Air for Everyone v. Meyer, 373 F.3d 1035,
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1039 (9th Cir. 2004).
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Generally, a court should freely give leave to amend a complaint after granting
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a dismissal. Fed. R. Civ. P. 15(a). However, a court may deny leave to amend when
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the court determines that the allegation of other facts consistent with the challenged
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pleading could not possibly cure the deficiency. Schreiber Distrib. Co. v. Serv-Well
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Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see also Lopez v. Smith, 203 F.3d
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1122, 1127 (9th Cir. 2000).
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V.
DISCUSSION
Cooks claims touch on some of the most personal and binding relationships that a
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person will have in his or her lifetime: the bond between a parent and a child. At the
heart of her suit, she asks this Court to assess the constitutionality of how a state
defines parenthood and to hold that no state can afford respect and force of law to a
private contract between consenting adults for the gestation of a human being, no
matter the biological relationship (or lack thereof) of the surrogate mother and the
fetus she carries to term.8 She seeks both parental rights for herself and, perhaps, the
end of recognized, binding surrogacy contracts in the State of California.9
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A. Justiciability
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While acknowledging the gravity of her claims, Defendants assert that such
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claims are nonjusticiable in this Court. Each have filed Motions to Dismiss, and each
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raise arguments unique to the individual Defendant while also arguing that various
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abstention doctrines should be applied to the case at bar. (ECF Nos. 44, 46, 54, 60.)
14
Defendants contend that Cooks claims implicate duties involving state judicial
15
processes that cannot be properly determined by a federal court, and that Cook seeks
16
remedies that cannot be molded without violating established principles of comity and
17
federalism. (See State Defs. Mot. 1516, ECF No. 54.)

The judicial power of the United States defined by Art[icle] III is not an
18
19
20
21
22
23
24
25
26
27
28
Cooks arguments are a matter of first impression, even if surrogacy contracts are no stranger to
California courts. Cook insists that the preeminent case on this subject, Johnson v. Calvert, 5 Cal.
4th 84 (1993), establishes that surrogates have maternal rightsjust, perhaps, not as strong as those
belonging to the intended mother. (Plf.s Oppn to C.M. Mot. 4, ECF No. 75.) Setting aside
whether Cook correctly interprets Calvert, the legal dance at bar requires the Court to accept a
premise which no court in California has yet to do: that where there is no intended mother present in
a childs life, a surrogate with no biological relationship with the fetus then carries the maternal
mantle and has parental rights of her own.
9
Should Cook ultimately prevail, the Court is at a loss to imagine an intended parent in this state
who would contract with a gestational surrogate, knowing that the woman could, at her whim,
decide that the intended parent or parents are not up to snuff and challenge their parenting abilities
in court. Surely Cooks normative world would be one far different todays; after all, [w]hat a far
different experience life would be if the State undertook to issue children to people in the same
fashion that it now issues drivers licenses. What questions, one wonders, would appear on the
written test? J.R. v. Utah, 261 F. Supp. 2d 1268, 1298 n.29 (D. Utah 2002).
14
unconditioned authority to determine the constitutionality of legislative or executive
acts. Valley Forge Christian Coll. v. Americans United For Separation of Church
and State, Inc., 454 U.S. 464, 471 (1982). Rather, Article III limits the federal
judicial power to those disputes which confine federal courts to a role consistent with
a system of separated powers and which are traditionally thought to be capable of
resolution through the judicial process. Id. at 472 (quoting Flast v. Cohen, 392 U.S.
83, 97 (1968)); see also Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 102
(1998). Cases are thus nonjusticiable when the subject matter of the litigation is
inappropriate for federal judicial consideration. Baker v. Carr, 369 U.S. 186, 198
10
(1962). In determining whether a case is justiciable, consideration of the cause is not
11
wholly and immediately foreclosed; rather, the [c]ourts inquiry necessarily proceeds
12
to the point of deciding whether the duty asserted can be judicially identified and its
13
breach judicially determined, and whether protection for the right asserted can be
14
judicially molded. Id. It is the role of the courts to provide relief to claimants, in
15
individual or class actions, who have suffered, or will imminently suffer, actual harm;
16
it is not the role of courts, but that of the political branches, to shape the institutions of
17
government in such fashion as to comply with the laws and the Constitution. Lewis
18
v. Casey, 518 U.S. 343, 349 (1996). These basic concerns are heightened when a
19
lawsuit challenges core activities of state responsibility. Rizzo v. Goode, 423 U.S.
20
362, 37879 (1976).
21
Special considerations are at play when related litigation appears in both state
22
and federal court. Since the beginning of this countrys history Congress has, subject
23
to few exceptions, manifested a desire to permit state courts to try state cases free
24
from interference by federal courts. Younger v. Harris, 401 U.S. 37, 43 (1971). This
25
desire is premised upon the fundamental and vital role of comity in the formation of
26
this countrys government and perhaps for lack of a better and clearer way to
27
describe it, is referred to by many as Our Federalism. Id. at 44. Our Federalism
28
demonstrates a proper respect for state functions, a recognition of the fact that the
15
entire country is made up of a Union of separate state governments, and a continuance
of the belief that the National Government will fare best if the States and their
institutions are left free to perform their separate functions in separate ways. Id. It
represents a system in which there is sensitivity to the legitimate interests of both
State and National Governments, and in which the National Government, anxious
though it may be to vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the legitimate activities
of the States. Id.
It is within the context of this foundational concept of comity, which strikes at
10
the heart of the countrys governing principles, that the court must view this case. The
11
Court is cognizant of the gravity of Cooks claims, should they have merit. But the
12
Court is equally cognizant of the profound and consequential principles of federalism
13
implicated by this case.
14
significant but conflicting interests that the court undertakes its analysis of
15
justiciability under Younger v. Harris and its progeny.10
Accordingly, it is with careful attention to these two
16
17
B. Younger Abstention
18
In Younger v. Harris, the Supreme Court declined to enjoin a pending state
19
criminal prosecution under the states criminal syndicalism law, which the plaintiff
20
argued violated the First Amendment. 401 U.S. at 4041. The Court observed that
21
Congress over the years has manifested an intent to permit state courts to try state
22
23
24
25
26
27
28
10
Defendants also contend that Cook lacks standing to bring her claims, both as to specific
Defendants and more generally. (State Defs. Mot. 811; C.M. Mot. 1215, ECF No. 46.)
Defendants arguments concerning abstention and standing relate to whether Cooks claims are
properly before the Court and within the confines of the judicial authority conferred by Article III.
Indeed, assuming that Cook has sufficiently alleged injury in fact and causation, something
Defendants vehemently refute, the Courts conclusions relating to its ability to redress such injury, as
set forth infra, obviously shade into those determining whether the complaint sufficiently presents
a real case or controversy for purposes of standing. O'Shea v. Littleton, 414 U.S. 488, 499 (1974).
Accordingly, the Court declines to address Defendants injury and causation arguments, as Younger
dictates that the federal court should not be the body to provide redress.
16
cases free of federal interference. It identified two sources for this policy: the
constraints of equity jurisdiction and the concern for comity in our federal system.
Gilbertson v. Albright, 381 F.3d 965, 970 (9th Cir. 2004). Principles of equity prevent
erosion of the role of juries within our judicial system and the duplication of legal
proceedings where one suit can adequately safeguard the rights asserted. Comity, on
the other hand, pays respect to legitimate state functions. Of these two principles,
comity proves to be the more vital consideration. Id. at 971 (quoting Younger, 401
U.S. at 4345); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans
(NOPSI), 491 U.S. 350, 364 (1989) (stating that Younger rested primarily on the
10
even more vital consideration of comity); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,
11
10 (1987) (noting comity as Youngers second and even more vital explanation for
12
its decision); Juidice v. Vail, 430 U.S. 327, 334 (1977) (emphasizing that comity is the
13
more vital consideration).
14
These values still bolster the so-called Younger doctrine, which has expanded
15
beyond its original roots. Now, generally speaking, federal courts should abstain from
16
granting declaratory or injunctive relief where doing so would interfere with a pending
17
state judicial proceeding, criminal or civil, that touches on matters of state concern.
18
Hirsh v. Justices of the Supreme Ct. of Cal., 67 F.3d 708, 712 (9th Cir. 1995) (citing
19
Younger, 401 U.S. at 4041); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 604
20
(1975) (holding that the Younger principles likewise counsel abstention from state
21
civil proceedings); Samuels v. Mackell, 401 U.S. 66, 72 (1971) (extending Younger to
22
declaratory actions because ordinarily a declaratory judgment will result in precisely
23
the same interference with and disruption of state proceedings that the longstanding
24
policy limiting injunctions was designed to avoid.).
25
In order for a federal court to provide declaratory or injunctive relief where
26
there is related, ongoing state court litigation, the case must fit within both an
27
28
17
exception to the Anti-Injunction Act11 and an exception to the Younger doctrine.
Section 1983 is an exception to the Act in that it constitutes an express authorization
for injunctions, and thus Cooks claims clear this initial hurdle. See Mitchum v.
Foster, 407 U.S. 225, 24243 (1972). However, the Court finds that no exception to
Younger exists, and thus this Court is barred from offering the relief Cook seeks.
The Younger doctrine has evolved since its inception, and today, absent
extraordinary circumstances, abstention in favor of state judicial proceedings is
required if the state proceedings (1) are ongoing; (2) implicate important state
interests; (3) provide the plaintiff an adequate opportunity to litigate her federal
10
claims; and (4) where the federal courts involvement would interfere in a way that
11
Younger disapproves. AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th
12
Cir. 2007); see also Middlesex Cnty. Ethics Comm. v. Garden State Bar Assn, 457
13
U.S. 423, 432 (1982). Even where the first three elements are satisfied, federal courts
14
should not abstain absent a reason to abstaini.e., if the courts action would enjoin,
15
or have the practical effect of enjoining, ongoing state court proceedings.
16
AmerisourceBergen, 495 F.3d at 1149. Where these standards are met, a federal court
17
may not exercise jurisdiction, and there is no discretion to do otherwise. San Jose
18
Silicon Valley Chamber of Comm. Political Action Comm. v. City of San Jose, 546
19
F.3d 1087, 1092 (9th Cir. 2008). In fact, [w]here Younger abstention is appropriate,
20
a district court cannot refuse to abstain, retain jurisdiction over the action, and render a
21
decision on the merits after the state proceedings have ended. To the contrary,
22
Younger abstention requires dismissal of the federal action. Beltran v. State of Cal.,
23
871 F.2d 777, 782 (9th Cir. 1988) (emphasis in original).
24
The Supreme Court has held that Younger abstention is appropriately applied
25
to challenges to state custody and parentage proceedings. See Moore v. Sims, 442
26
27
28
11
Dating back to 1793, the Anti-Injunction Act prevents federal courts from enjoining pending state
court litigation unless the case satisfies a specific statutory exception. See Mitchum v. Foster, 407
U.S. 225, 231236 (1972).
18
U.S. 415, 423(1979).12 In Moore, a husband, his wife, and their three minor children
sought a declaration that parts of the Texas Family Code unconstitutionally infringed
upon family integrity after a juvenile court judge entered an emergency ex parte order
that gave temporary custody of the children to the State Department of Public
Welfare. Id. at 41920. The appellees moved to terminate that temporary custody
order. Id. at 420. However, instead of moving to expedite the custody hearing in state
court or request an earlier hearing before a state trial or appellate court, the family
filed suit in federal court challenging the constitutionality of the relevant state statutes.
Id. at 421. After walking through the elements of Younger abstention, the Supreme
10
Court held that the familys broad challenge to a state statutory scheme militated in
11
favor of abstention, not against it. Id. at 427.
12
Moore is illustrative. Just as there, Cook challenges the constitutionality of a
13
family court order, and seeks to do so in federal court while her state court appellate
14
case is pending. Finding Moore persuasive, this Court is likewise unwilling to
15
conclude that state processes are unequal to the task of accommodating the various
16
interests and deciding the constitutional questions that may arise in child-welfare
17
litigation. Id. at 435.
18
19
1. Ongoing State Proceedings
20
In order to invoke Younger abstention, the County must demonstrate as a
21
threshold matter that state proceedings, judicial in nature, are pending. Middlesex,
22
457 U.S. at 432.
23
proceedings are still ongoing, but whether they were underway before initiation of the
24
12
25
26
27
28
Significantly, the question is not whether the state judicial
Cook argues that Younger abstention is inappropriate here because her state case is not criminal in
nature, not a civil enforcement proceeding, and not a proceeding that involves orders that are
uniquely in furtherance of the state courts ability to perform judicial functions. (Joint Oppn 36,
ECF No. 74 (quoting NOPSI, 491 U.S. at 368).) Describing Younger solely in terms of those
limitations ignores the current breadth of the doctrine, which counsels abstention where important
state issues are at play. As was made clear in Moore, abstention is appropriate in civil proceedings
in which important state interests are involved, including disputes over the constitutionality of state
family law provisions. 442 U.S. at 423.
19
federal action. Young v. Schwarzenegger, No. C-10-03594-DMR, 2011 WL 175906,
at *2 (N.D. Cal. Jan. 18, 2011) (citing Gilbertson, 381 F.3d at 969 n.4). Moreover,
proceedings will be deemed ongoing until state appellate review is completed.
Gilbertson, 381 F.3d at 969 n.4. This first prong is easily met here.
Cook filed the case at bar after C.M. filed his section 7962 in the Childrens
Court and before Judge Pellmans order. (ECF No. 1.) Accordingly, the Court finds
that a state judicial proceeding was ongoing at the time of the federal filing. See
Beltran, 871 F.2d at 782 (stating that abstention requires proceedings to be ongoing at
the time plaintiff initiates federal proceedings). This state proceeding continues on
10
today, as Cook appealed the February 9, 2016 judgment granting C.M.s section 7962
11
petition on April 14, 2016. (Notice of Appeal, Plf.s RJN, Ex. 14, ECF No. 84.) That
12
appeal remains before the California Court of Appeal, and no longer appears to be
13
stayed. (Supersedeas Denial, Kaiser RJN, Ex. A, ECF No. 62.) Until appellate
14
review of the section 7962 judgment is complete, the Court must deem the matter
15
ongoing.
16
17
2. Important State Interests
18
Myriad state interests are at play here, each of which satisfies the second step of
19
the Younger analysis.
20
Cook is asking this Court to declare that a state court judgment is
21
unconstitutional and to enjoin its enforcement. (SAC.) Setting aside the fact that
22
Cook seeks federal court interference in family law matters, California still maintains
23
an important interest in enforcing orders and judgments of its judicial system.
24
Gilbertson, 381 F.3d at 973 (citing Pennzoil, 481 U.S. at 14 (holding that, so long as
25
challenges to the process by which state judgments are obtained relate to pending state
26
proceedings, proper respect for the ability of state courts to resolve federal questions
27
presented in state-court litigation mandates that the federal court stay its hand)). This
28
reason alone satisfies Youngers second step.
20
Of even greater state importance is the subject matter of this suit.
The
underlying state interest here is, perhaps, is one of a states most precious. Cook is
asking this Court to redefine parenthood under state law, and surely no area of law is
of greater interest to the state than that devoted to the domestic realm. The power of a
state to determine the custody of its youngest members is unique to the state, and
accordingly federal courts should abstain from interference. Moore, 442 U.S. at 435
(Family relations are a traditional area of state concern.); Buechold v. Ortiz, 401
F.2d 371, 372 (9th Cir. 1968) (As Justice Holmes said . . . It has been understood
that, the whole subject of domestic relations of husband and wife, parent and child,
10
belongs to the laws of the states and not to the laws of the United States. (internal
11
citations and quotation marks omitted)).
12
13
3. Opportunity to Present Federal Claims
14
The Family Court interpreted section 7962 to bar consideration of Cooks
15
constitutional claimsor consideration of any facts that do not touch on the four
16
corners of the surrogacy contract itself. (Section 7962 Order.) Looking just to the
17
Family Courts actions, then, it would appear that Cook has no recourse to present her
18
federal claims in the state judicial system. But such a conclusion is misguided; Cook
19
has every ability toand, indeed, already hasappeal Judge Pellmans refusal to
20
entertain Cooks constitutional arguments during the section 7962 hearing.
21
Judicial review is inadequate only when state procedural law bars presentation
22
of the federal claims. See Moore, 442 U.S. at 430 & n.12 (1979) (finding abstention
23
appropriate because state law did not impose procedural barriers to raising
24
constitutional claims). Cook, in turn, argues that neither Judge Pellman nor the
25
California Superior Court were willing to entertain her constitutional claims, and thus
26
the state court system is inadequate to hear her pleas. (Joint Oppn 37.)
27
However, neither the fact that the Superior Court declined to accept Cooks
28
initial filing nor Judge Pellmans refusal to assess her counterclaims in the section
21
7962 petition here mean that the state system is inadequate. See Hirsh, 67 F.3d at 713
(the fact that review is discretionary does not bar presentation of federal claims);
Beltran, 871 F.2d at 781, 783 (opportunity to present federal claims in a writ petition
is sufficient to trigger Younger abstention, even though the court of appeal simply
denied the petition without elaboration); Martori Bros. Distribs. v. James
Massengale, 781 F.2d 1349, 1352, 1354 (9th Cir. 1986), amended on other grounds,
791 F.2d 799 (9th Cir. 1986) (opportunity to raise federal claims in petition for review
satisfied the requirements of Younger even though a reviewing court could deny the
petition summarily); Fresh Intl Corp. v. ALRB, 805 F.2d 1353, 1362 (9th Cir. 1986)
10
(finding abstention applicable because plaintiff could have presented [its federal
11
claim] to the court of appeal in its petition for review).
12
The nuances of family law do not counsel a different result. Again, Moore v.
13
Sims is illustrative. In Moore, the Supreme Court explicitly reversed a district court
14
order that declined to abstain where the litigation was multifaceted, involved child
15
custody determinations, and where the litigation was the product of procedural
16
confusion in the state courts. Moore, 442 U.S. at 42243. This Court can think of no
17
terms more apt to describe the case at bar than multifaceted and the product of
18
procedural confusion.
19
contract interpretation, and constitutional law. She seeks both a declaratory judgment
20
that she is the legal mother of three children to whom she has no biological tie, to
21
enjoin the state from both recognizing a contract she willingly entered into, and to
22
prevent the enforcement of a family court order. In the crosshairs sit three young
23
infants and their biological and legal father. To say this case is multifaceted is an
24
understatement.
Id.
Cooks claims hinge on parentage determinations,
25
Younger requires no more than the opportunity for the presentation of federal
26
constitutional claims in the state proceeding; nothing presented to this Court implies
27
that the California Court of Appeal is barred from entertaining Cooks constitutional
28
claims. Moreover, this Court will not contradict decades of precedent and find that a
22
state court is incompetent to adjudicate federal constitutional claims. See id. at 430
32; Gilbertson, 381 F.3d at 972. Accordingly, the Court holds that the state judicial
system affords Cook an adequate forum to seek relief.
4
5
4. Interference
Finally, even where all three Younger elements are met, the Ninth Circuit
requires this Court to determine whether federal court involvement would interfere in
a way that Younger disapproves. AmerisourceBergen, 495 F.3d at 1149. If this
Courts continued participation in the litigation would enjoin, or have the practical
10
11
effect of enjoining, ongoing state court proceedings, abstention is required. Id.

The policies supporting Younger abstention are present here.
If Cook
12
prevailed, Judge Pellmans section 7962 Judgment would be enjoined, and the
13
appellate process would be put on hold while this Court wades into Californias
14
family law scheme. The Court therefore declines to even touch a toe into this states
15
domestic code.
16
17
5. Exceptional Circumstances
18
Although a federal court is normally required to abstain if the prongs of the
19
Younger test are satisfied, abstention is inappropriate in certain extraordinary
20
circumstance[s]. See Gibson v. Berryhill, 411 U.S. 564, 57779 (1973) (abstention
21
inappropriate where state tribunal is incompetent by reason of bias). Bias exists were
22
a court has prejudged, or reasonably appears to have prejudged, an issue. Kenneally
23
v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992). Establishing bias is no minor hurdle;
24
one who alleges bias must overcome a presumption of honesty and integrity in those
25
serving as adjudicators. Id. at 333 (quoting Withrow v. Larkin, 421 U.S. 35, 47
26
(1975)). Cook does not allege that the justices on the appellate panel have a personal
27
or financial stake in this manner, and thus this Court finds no exceptional
28
circumstances warranting federal jurisdiction.
23
Because Cooks claims would interfere with ongoing state court proceedings
that implicate important state interests, and because Cook has an adequate opportunity
to pursue her federal claims in those proceedings and has failed to overcome the
presumption of honesty and integrity in those serving as adjudicators, the Court must
abstain from adjudicating these claims pursuant to Younger v. Harris and dismiss the
matter. Beltran, 871 F.2d at 782.
7
8
9
10
VI.
CONCLUSION
For the above reasons, the Court GRANTS Defendants Motions to Dismiss
and directs the Clerk of Court to close this case.
11
12
IT IS SO ORDERED.
13
14
June 6, 2016
15
16
17
18
____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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24

Cook v. Harding Dismissal Order

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What is the central issue in the case?

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Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 1 of 24 Page ID #:2159

United States District Court

MELISSA KAY COOK, individually and

Case 2:16-cv-00742-ODW (AFM)

DISMISS [44, 46, 54, 60]

CYNTHIA ANNE HARDING; JEFFREY

Plaintiff Melissa Kay Cook (Cook), individually and as Guardian Ad Litem

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 2 of 24 Page ID #:2160

Health), Cynthia Harding (Director of Los Angeles County Public Health

official capacities, as well as Kaiser Foundation Hospital, Panorama City Medical

Babies A, B, and C).

Cook brings as-applied and facial constitutional challenges under 28 U.S.C.

(Second Amended Complaint (SAC), ECF No. 25.)

the matter in its entirety with prejudice under Rule 12(b)(1).

A. Surrogacy Contracts in California

enforceability of surrogacy contracts in California. (SAC 1.) However, in order to

Defendants find themselves, a history lesson is appropriate.

In 1975, California adopted the Uniform Parentage Act in an effort to eliminate

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 3 of 24 Page ID #:2161

a child if it gave the parent of a legitimate child the same right).

adoptive. Id.; see also Calvert, 5 Cal. 4th at 89.

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 4 of 24 Page ID #:2162

forms of assisted reproductive technologies.3

thousands of children are born through surrogacy arrangements.6 In Calvert, the

Adding an additional layer to the

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 5 of 24 Page ID #:2163

Surrogacy arrangements began and continued in California without any

Presenting a valid surrogacy agreement to the court rebuts any presumptions

1. The date the contract was executed;

3. The name(s) of the intended parent(s); and

will be handled, including a review of applicable health insurance coverage and

what liabilities, if any, that may fall on the surrogate.

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 6 of 24 Page ID #:2164

signed and notarized. Id.

agreement or accompanying attorney declarations were not executed in accordance

cannot be rescinded or revoked without a court order. Id.

The statute places no conditions on who can serve as a surrogate (beyond

services of a gestational carrier.

accommodations necessary for the arrangement are to be detailed in the surrogacy

No minimum levels of income,

B. Cooks Contract and Pregnancy

Cook enlisted the help of Surrogacy

International, Inc., a California-based surrogacy broker, to offer her services for a

triplet boys (Babies A, B, and C) on February 22, 2016. (Id. 2.)

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 7 of 24 Page ID #:2165

(SAC 19, 50.)

Surrogacy International drafted a 75-page

Slaughter of The Fertility Law Firm to represent Cook.

had any reservations.

September 18, 2015, C.M. emailed Walmsley at Surrogacy International to reiterate

Case 2:16-cv-00742-ODW-AFM Document 92 Filed 06/06/16 Page 8 of 24 Page ID #:2166

surrogate trust account. (Id. 71.)

looking for adoptive parents for one or more of the children.

would happily raise one of the babies herself.

Again, C.M. firmly

After C.M.s September 22 reduction request, Cook contacted Lesa Slaughter,