California Surrogacy Contract Law Upheld

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By Bernie Pazanowski

A federal district court improperly abstained from hearing a constitutional challenge to California’s surrogacy contract enforcement law while the parties’ related state suit proceeded, the U.S. Court of Appeals for the Ninth Circuit held Jan. 12.

Abstention was improper under controlling U.S. Supreme Court precedent because the state proceedings were neither quasi-criminal enforcement actions nor cases involving the state’s interest in enforcing the orders of its courts, the opinion written by Judge Stephen Reinhardt said.

Nevertheless, federal courts are precluded from hearing the suit because a state appellate court ruled that the state law is constitutional, the appeals court said.

Melissa Cook agreed to be a surrogate mother and signed a contract to give up her parental rights and surrender any children to C.M. when they were born. Cook was artificially inseminated and three embryos developed.

When Cook and C.M. disagreed over whether she should carry all three babies to term, she challenged the constitutionality of the state law and C.M. sought to have the contract enforced. While those suits were pending in state court, Cook filed a federal suit raising her constitutional claims. The district court abstained, noting the state’s unique interest over domestic relations.

While the district court erred by not applying controlling precedent, the state court definitively settle the issue, the appeals court said.

Judges Kim McLane Wardlaw and Wiley Y. Daniel, sitting by designation, joined the opinion.

The Cassidy Law Firm represented Cook. Jarette & Walmsley LLP represented C.M.

The case is Cook v. Harding , 2018 BL 12487, 9th Cir., No. 16-55968, 1/12/18 .

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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