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Surrogate Mother Can't Regain Her Children, 9th Cir. Rules

By William Vogeler, Esq. | Last updated on

Attorney Robert Walmsley has been on the forefront of surrogacy law since before it became the law.

That's because he represented the biological parents against a surrogate they hired in Johnson v. Calvert, the groundbreaking case that upheld a surrogacy contract in California in 1993. And so it was natural for him to cite his own case on behalf of his client in a dispute between a surrogate and a biological father.

In Cook v. Harding, the U.S. Ninth Circuit Court of Appeals rejected the surrogate's efforts to wrest triplets from a man who paid her to carry the children to term. As it turned out, her attorneys should have read the law more carefully.

Gestational Surrogacy

Melissa Cook entered a gestational surrogacy agreement with C.M. pursuant to California Family Code Section 7962. Under the contract, she agreed to carry the embryos created from an anonymous donor and sperm from C.M., and then to surrender the child or children upon birth to C.M.

The parties had a disagreement, however, after Cook learned that she was pregnant with three fetuses. She sued in state court to invalidate the contract on constitutional grounds.

The case spawned three lawsuits, as the parties sought relief in different forums. C.M., represented by Walmsley, petitioned in the Children's Court in Los Angeles.

That court ruled against Cook, and a state appeals court affirmed. Meanwhile, Cook filed another constitutional challenge in federal court, which abstained on jurisdictional grounds.

Constitutional Rights

On appeal, the Ninth Circuit said the federal judge erred. However, the appeals panel affirmed on issue preclusion grounds because the state courts had already decided the issues.

Judge Reinhardt, writing for the unanimous panel, said the state appeals court thoroughly considered the relevant issues. The federal panel also rejected Cook's argument that the Calvert decision was limited to contractual rights.

"We do not believe that our Supreme Court would have held that the surrogacy contract in Calvert was consistent with public policy if it believed that the surrogacy arrangement violated a constitutional right," Reinhardt wrote.

The Ninth Circuit also took issue with Cook's attack on C.M. in the case, saying "the legally irrelevant and deeply disparaging allegations about C.M's ability, intellect, and socioeconomic status throughout her pleadings are wholly inappropriate."

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