Amicus Curiae Brief — M. W., Applicant v. Superior Court of California, Los Angeles County, et al.

Supreme Court briefSep 11, 2026

Ask Donna

What actually matters in this document.

Text

No. 26A325

In the Supreme Court of the United States

___________

M.W.,

Applicant,

v.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

LOS ANGELES, N.G., AND O.A.,

Respondents.

_________________________________

To the Honorable Elena Kagan, Associate Justice of the United States

Supreme Court and Circuit Justice for the Ninth Circuit

_________________________________

On Application to Stay Parentage Order Entered by the

Superior Court of California, County of Los Angeles

_________________________________

BRIEF OF AMICI CURIAE FLORIDA, ALASKA, AND

11 OTHER STATES IN SUPPORT OF M.W.’S STAY APPLICATION

________________________________

CORI MILLS

Alaska Acting Attorney General

JESSICA M. ALLOWAY

Acting Solicitor General

Department of Law

1031 West Fourth Avenue, Suite 200

Anchorage, AK 99501

(907) 269-5100

ANTHONY J. SIRVEN

CARLOS HAAG

BRIAN M. TRUJILLO

Lawson Huck Gonzalez, PLLC

121 Alhambra Plaza Ste. 1604

Miami, Florida 33130

(850) 825-4334

anthony@lawsonhuckgonzalez.com

JAMES UTHMEIER

Attorney General

RYAN D. NEWMAN

Chief Deputy Attorney General

DAVID M.S. DEWHIRST*

Solicitor General

JASON J. MUEHLHOFF

Chief Deputy Solicitor General

SAMUEL F. ELLIOTT

Deputy Solicitor General

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399

(850) 414-3300

david.dewhirst@myfloridalegal.com

*Counsel of record

September 11, 2026

Attorneys for Amici Curiae States of Florida & Alaska

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

INTEREST OF AMICUS CURIAE ............................................................................... 1

INTRODUCTION .......................................................................................................... 1

ARGUMENT .................................................................................................................. 4

I.

The California Order violates due process. ................................................ 7

A. The California Order undermines state sovereignty. ........................ 7

B. The California Order violates Baby G.’s due process rights. ........... 13

II.

The California Order is not entitled to full faith and credit. .................. 15

III. A child’s custody may not be fixed by contract—affording no

inquiry into his best interests—without offending the Equal

Protection Clause. ..................................................................................... 18

IV. A child’s custody may not be fixed by contract—affording no

inquiry into his best interests—without offending the Thirteenth

Amendment. .............................................................................................. 20

CONCLUSION............................................................................................................. 24

ADDITIONAL SIGNATORIES ................................................................................... 26

i

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas Dep’t of Hum. Servs. v. Cox,

82 S.W.3d 806 (Ark. 2002) ........................................................................................ 17

Banks’ Adm’r v. Marksberry,

13 Ky. 275 (1823) ...................................................................................................... 22

Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty.,

582 U.S. 255 (2017) ..................................................................................................... 8

Buchanan v. Buchanan,

197 S.E. 426 (Va. 1938)............................................................................................. 20

C.M. v. M.C.,

7 Cal. App. 5th 1188 (2017) ................................................................................ 19, 20

Clark v. Jeter,

486 U.S. 456 (1988) ................................................................................................... 18

Coyote Publ’g, Inc. v. Miller,

598 F.3d 592 (9th Cir. 2010) ..................................................................................... 23

Ex parte E.L.,

208 So. 3d 1102 (Ala. 2015) ...................................................................................... 18

Ferguson v. Winston,

996 P.2d 841 (Kan. Ct. App. 2000) ........................................................................... 14

Ford v. Ford,

371 U.S. 187 (1962) ............................................................................................. 19, 20

Fuld v. Palestine Liberation Org.,

606 U.S. 1 (2025) ..................................................................................................... 7, 8

Gray v. Gray,

139 So. 3d 802 (Ala. Civ. App. 2013) ........................................................................ 16

Hanson v. Denckla,

357 U.S. 235 (1958) ................................................................................................. 7, 8

In re Marriage of Tonnessen,

941 P.2d 237 (Ariz. Ct. App. 1997) ........................................................................... 16

Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement,

326 U.S. 310 (1945) ................................................................................................... 14

Johnson v. Calvert,

5 Cal. 4th 84 (1993)............................................................................................. 19, 23

ii

Levy v. Louisiana,

391 U.S. 68 (1968) ..................................................................................................... 18

Little v. Streater,

452 U.S. 1 (1981) ....................................................................................................... 13

Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122 (2023) ............................................................................................... 9, 10

Matter of S.D.S.,

371 Or. 573 (2023)..................................................................................................... 23

McQueen v. Gadberry,

507 S.W.3d 127 (Mo. Ct. App. 2016) ........................................................................ 23

Pennoyer v. Neff,

95 U.S. 714 (1877) ....................................................................................................... 7

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................................................................... 21

Ruddock v. Ohls,

91 Cal.App.3d 271 (Cal. Ct. App. 1979) ................................................................... 14

State v. Santos,

702 P.2d 1179 (Wash. 1985) ..................................................................................... 14

Thompson v. Thompson,

484 U.S. 174 (1988) ............................................................................................. 15, 16

Trimble v. Gordon,

430 U.S. 762 (1977) ................................................................................................... 18

United States v. Hatch,

722 F.3d 1193 (10th Cir. 2013) ................................................................................. 23

United States v. King,

840 F.2d 1276 (6th Cir. 1988) ............................................................................. 20, 22

V.L. v. E.L.,

577 U.S. 404 (2016) ............................................................................................. 17, 18

Weber v. Aetna Cas. & Sur. Co.,

406 U.S. 164 (1972) ................................................................................................... 18

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ..................................................................................................... 8

Constitutional Provisions

U.S. Const. amend. XIII, § 1........................................................................................ 20

U.S. Const. art. IV, § 1 ................................................................................................... 6

iii

Statutes

28 U.S.C. § 1738A .................................................................................... 3, 6, 15, 16, 17

Cal. Code. Civ. Proc. § 418.11........................................................................................ 4

Cal. Fam. Code § 7960 ................................................................................................... 3

Fla. Stat. § 742.15 .................................................................................................... 3, 13

Other Authorities

Alexandra Herweck et al., International gestational surrogacy in the United States,

2014–2020, 121 Fertility & Sterility 622 (Apr. 2024).............................................. 11

Anthony Jose Sirven, No Property in Man: A Fading Principle,

29 Tex. Rev. L. & Pol. 211 (2025) ............................................................................. 21

Barry E. Adler, Property Rights in Children,

95 Notre Dame L. Rev. 1629 (2020) ......................................................................... 21

Carter Dillard, Future Children As Property,

17 Duke J. Gender L. & Pol’y 47 (2010)................................................................... 21

Harriet Beecher Stowe, A Key to Uncle Tom’s Cabin

(John P. Jewett & Co. 1853) ..................................................................................... 22

Restatement (Second) of Torts § 194 (1981) ............................................................... 20

iv

INTEREST OF AMICI CURIAE1

Amici States have a sovereign interest in the enforceability of their laws

regarding gestational surrogacy—laws that exist to protect their women and children

citizens from harm. By issuing parentage and custody orders for children outside

their

jurisdiction,

California

courts

are

imposing

California’s

reckless,

unconstitutional gestational surrogacy laws on women and children throughout the

country.

INTRODUCTION

The question presented by the application is narrow, and its answer is obvious.

The question: Can a state’s courts treat a limited appearance to contest personal

jurisdiction as consent to personal jurisdiction without violating the Due Process

Clause of the Fourteenth Amendment? The answer: Of course not.

This Court should take up that narrow question and stay or reverse the

California order for two reasons.

First, a child’s life hangs in the balance.

Respondents N.G. and O.A. demanded that Baby G. be aborted when they learned he

had a treatable heart condition. Appl. 3–5.2 Applicant M.W. refused and heroically

saved the child’s life. Appl. 3–5. Now that Baby G. has been born, N.G. and O.A.

want to be recognized as his parents and custodians—but refuse to say whether they

will continue Baby G.’s medical care, or place him on hospice. Appl. 9. Because of

the order on appeal, Baby G. will be discharged from the hospital and handed over to

1 No counsel for any party authored this brief in whole or in part, and no entity

or person, aside from Amici States and their counsel, made any monetary

contribution toward the preparation or submission of this brief.

2 N.G. and O.A. do not regret that decision. Appl. 10.

1

N.G. and O.A. in the coming week. Appl. 2. Surely that alone is enough to warrant

this Court’s review.

Second, this Court should take up the narrow question presented because, if it

does not, far weightier questions lie just beyond. The California courts’ failure to

police their jurisdiction has not only resulted in individual injustice to Applicant

M.W.—it is also a direct threat to other States’ sovereign authority to regulate

gestational surrogacy and protect children born within their borders.

Consider what has happened here.

A California court issued a decree

adjudicating the parentage of a child in the womb of an Alaskan woman based solely

on the “consent” of the surrogate (M.W.) and the couple contracting for parentage

(N.G. and O.A.). After the child was born in Texas, N.G. and O.A. demanded that a

Texas trial court give full faith and credit to the California Order. So far, it has.3 But

make no mistake—if N.G. and O.A. are right about personal jurisdiction and full faith

and credit, then California courts and California law will decide the fate of children

born via gestational surrogacy all across the country.

They are wrong about both. M.W. did not consent to personal jurisdiction in

California.

But even if she had, mere consent on the part of a surrogate and

contracting couple, without a demonstrated nexus between the forum state and the

child, violates the Fourteenth Amendment’s Due Process Clause. As for full faith and

credit, the Parental Kidnapping Prevention Act (PKPA) governs when a state must

enforce an out-of-state judgment “providing for the custody of a child.” 28 U.S.C.

3 That ruling is on appeal.

2

§ 1738A. The California Order provides for the custody of Baby G., and the California

court that issued it lacked jurisdiction under the PKPA. Therefore, no part of the

California Order is entitled to full faith and credit.

What’s worse, the contracting couple’s view of the Full Faith and Credit Clause

places it on a collision course with other provisions of the United States Constitution.

Recognizing its many legal and moral hazards, many states ban or strictly regulate

gestational surrogacy.

Amici State of Florida, for example, permits gestational

surrogacy only if the contracting couple is a married man and woman, the woman is

infertile or cannot safely carry a child to term, at least one member of the contracting

couple is genetically related to the child, neither member of the contracting couple is

a citizen or resident of a foreign country of concern, and the contract between the

surrogate and contracting couple is otherwise “binding and enforceable” under the

state and federal constitutions. Fla. Stat. § 742.15. By contrast, California law allows

a single, biologically unrelated adult to purchase a child via gestational surrogacy

contract—from any country, for any reason, and with no inquiry into the child’s

welfare. Cal. Fam. Code § 7960. California’s radical approach raises red flags under

at least two provisions of the federal constitution: the Equal Protection Clause, which

does not permit states to sort children by the circumstances of their birth; and the

Thirteenth Amendment, which abolished the contractual transfer of human beings.

Amici States, to be clear, do not ask the Court to decide these questions today.

But the questions are coming—and fast. Faster still should the Court decline to grant

the stay.

3

ARGUMENT

Strip away the novelty of the subject matter and this is a simple case about a

court exercising personal jurisdiction based on consent it never obtained.

A

California couple (Respondents N.G. and O.A.) and an Alaska woman (Applicant

M.W.) executed a gestational surrogacy contract selecting Alaska law and an Alaska

forum. Appl. 3. During pregnancy, doctors diagnosed the baby (Baby G.) with a

serious but treatable heart condition. Appl. 3–4. N.G. and O.A. demanded that M.W.

abort the child. Nobly, she refused. Appl. 4–5. N.G. and O.A. then abandoned the

contract’s choice-of-law and forum-selection clauses and filed a parentage petition in

Los Angeles, but they never effectuated service. Appl. 5–6. M.W. appeared in the

California proceedings solely to contest jurisdiction and forum. Appl. 6. California

law promised that her special appearance would not be construed as consent to

personal jurisdiction. Appl. 19 (discussing Cal. Code. Civ. Proc. § 418.11). Yet

Respondent Superior Court of California, County of Los Angeles (“the Superior

Court”) treated M.W.’s special appearance to contest jurisdiction as a general

appearance that forfeited her ability to do so. Appl. 7. That ruling should have been

swiftly reversed under California law and the federal constitution. Nevertheless,

California’s appellate courts summarily affirmed it. Appl. 7–8, 10–11.

This imperious exercise of personal jurisdiction is no oversight. It is part and

parcel of California’s campaign to become the surrogacy capital of the world. To that

end, California has enacted the most liberal gestational surrogacy laws in the nation.4

4 See, e.g., Frances Caruso, U.S. Surrogacy Law By State, ConceiveAbilities

(Aug. 10, 2023), https://www.conceiveabilities.com/about/blog/u-s-surrogacy-law-by4

But California hasn’t stopped there. It now seeks to export its liberal surrogacy laws

by inviting individuals from around (and outside) the country to obtain parentage

and custody orders from California courts under California law, regardless of whether

the persons contracting for parentage, the surrogate, or the children have any

relationship with California.

No one in the Amici States voted to live under

California’s maximalist regime.

Thankfully, at least four provisions of the United States Constitution stand in

the way of California’s ability to impose its radical surrogacy laws on the rest of the

country:

1. The Due Process Clause of the Fourteenth Amendment imposes limits on

state courts’ in personam jurisdiction. These limits exist both to promote fairness for

individuals and to respect state sovereignty. Children have a fundamental liberty

interest in the proper adjudication of their parentage. The Due Process Clause

therefore prevents state courts from exercising personal jurisdiction when there are

state (“California is often thought of as the ‘friendliest’ state for surrogacy and for

good reason—California was the first state to enact a statute that makes surrogacy

available to all! . . . . California remains one of the most sought after states for

surrogacy. Intended Parents, regardless of . . . genetic connection or medical need for

surrogacy, can obtain a pre-birth order.”); US Surrogacy Laws by State: The Complete

2026 Guide, Physician’s Surrogacy (Apr. 29, 2026), https://perma.cc/D73N-ULXU

(describing California as the “gold standard” for surrogacy friendliness because it

“works for [a]ll family structures,” offers pre-birth orders, and has the “deepest legal

+ clinical infrastructure”); Surrogacy Laws By State, Legal Professional Group,

https://perma.cc/5LR3-WNJN (“Having more statutory law and published case law

on surrogacy arrangements than any other state, California is regarded as a highly

surrogacy friendly state . . . . Pre-birth and post-birth parentage orders are permitted

and may be obtained . . . regardless of whether [the persons contracting for parentage]

used their own gametes or donated sperm and/or eggs.”).

5

no minimum contacts. Consent to personal jurisdiction on the part of the surrogate

and contracting couple, alone, fails to establish a nexus between California and the

child. So even if N.G., O.A., and M.W. had consented to personal jurisdiction in

California, the Superior Court still would have lacked personal jurisdiction to issue a

parentage order for Baby G.

2. The Full Faith and Credit Clause authorizes Congress to “prescribe the

Manner in which [state] Acts, Records and Proceedings shall be proved, and the Effect

thereof.” U.S. Const. art. IV, § 1. Under the PKPA, an order “providing for the

custody of a child” is entitled to full faith and credit only if the issuing court had

jurisdiction under the PKPA. 28 U.S.C. § 1738A. Because the Superior Court lacked

jurisdiction under the PKPA, the California Order is not entitled to full faith and

credit.

3. California law generally affords children the benefit of a best-interests

analysis whenever a court grants parental rights to a person who is genetically

unrelated to the child. However, California law denies this benefit to children born

through gestational surrogacy. Under the Equal Protection Clause of the Fourteenth

Amendment, state laws like this that discriminate against children based on the

circumstances of their birth are subject to intermediate scrutiny.

4.

The

Thirteenth Amendment

prevents,

at

minimum,

government

enforcement of contracts that transfer human beings as chattel. Here, the Superior

Court facilitated the contractual transfer of a child without any regard for the child’s

best interests.

6

I.

The California Order violates due process.

Without a doubt, the California Order violated M.W.’s right to due process by

treating her limited appearance to contest jurisdiction as consent to jurisdiction. But

even if M.W. had consented to personal jurisdiction, the California Order would still

violate the Fourteenth Amendment’s Due Process Clause. The Due Process Clause’s

limits on personal jurisdiction are “driven by two principles: (1) treating defendants

fairly, and (2) protecting interstate federalism.” Fuld v. Palestine Liberation Org.,

606 U.S. 1, 13 (2025) (cleaned up). The California Order contravenes both.

A. The California Order undermines state sovereignty.

Shortly after the Fourteenth Amendment’s ratification, this Court recognized

that the Due Process Clause limits state courts’ ability to exercise in personam

jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 722 (1877). These limits, the Court

explained, are animated by the principle “that every State possesses exclusive

jurisdiction and sovereignty over persons and property within its territory.” Id.

This Court has repeated that doctrinal underpinning ever since. Hanson v.

Denckla held that the Due Process Clause’s “restrictions on the personal jurisdiction

of state courts . . . . are more than a guarantee of immunity from inconvenient or

distant litigation. They are a consequence of territorial limitations on the power of

the respective States.” 357 U.S. 235, 251 (1958).

World-Wide Volkswagen Corp. v. Woodson explained that “[t]he concept of

minimum contacts . . . perform[s] two related, but distinguishable, functions”: (1) “[i]t

protects the defendant against the burdens of litigating in a distant or inconvenient

forum,” and (2) “it acts to ensure that the States through their courts, do not reach

7

out beyond the limits imposed on them by their status as coequal sovereigns in a

federal system.” 444 U.S. 286, 291–92 (1980). “The sovereignty of each State . . .

implie[s] a limitation on the sovereignty of all of its sister States—a limitation express

or implicit in both the original scheme of the Constitution and the Fourteenth

Amendment.” Id. at 293.

Bristol-Myers Squibb reiterated that the Due Process Clause’s restrictions on

personal jurisdiction “are a consequence of territorial limitations on the power of the

respective States,” since “[t]he sovereignty of each State . . . implie[s] a limitation on

the sovereignty of all its sister States.” Bristol-Myers Squibb Co. v. Superior Ct. of

California, San Francisco Cnty., 582 U.S. 255, 263 (2017) (cleaned up). So “even if

the defendant would suffer minimal or no inconvenience from being forced to litigate

before the tribunals of another State; even if the forum State has a strong interest in

applying its law to the controversy; even if the forum State is the most convenient

location for litigation, the Due Process Clause, acting as an instrument of interstate

federalism, may sometimes act to divest the State of its power to render a valid

judgment.” Id. (cleaned up).

And just last year, Fuld confirmed that this Court’s “Fourteenth Amendment

personal jurisdiction standards emerged . . . as ‘a consequence of territorial

limitations on the power of the respective States.’” 606 U.S. at 14 (quoting Hanson,

357 U.S. at 251). “Interstate federalism concerns accordingly may be decisive for

Fourteenth Amendment purposes.” Id. at 17 (emphasis in original).

8

The dissent in Mallory v. Norfolk Southern Railway. Co. was therefore right to

point out that the Due Process Clause may in some cases prevent a state from

exercising personal jurisdiction even if all the parties have given genuine consent. 600

U.S. 122, 168–71 (2023) (Barrett, J., dissenting). The dissent catalogued “case after

case” emphasizing the Due Process Clause’s “dual role.” Id. at 169–70 (Barrett, J.,

dissenting). These decisions recognize procedural due process as a “right[] with

structural components”: “the Due Process Clause protects more than the rights of

defendants—it also protects interstate federalism.” Id. (Barrett, J., dissenting). The

dissent therefore concluded that Pennsylvania courts’ exercise of personal

jurisdiction over “consenting” corporations in cases otherwise lacking any meaningful

connection to Pennsylvania violated the Due Process Clause because it “infringe[d]

on more than just the rights of defendants—it upset[] the proper role of the States in

our federal system.” Id. at 170–71 (Barrett, J., dissenting).

Justice Alito’s concurrence agreed that “the Constitution restricts a State’s

power to reach out and regulate conduct that has little if any connection with the

State’s legitimate interests,” although he reasoned that this principle is “an obvious

and necessary result of our constitutional order, . . . not confined to any one clause or

section, . . . expressed in the very nature of the federal system that the Constitution

created and in numerous provisions that bear on States’ interactions with one

another.” Id. at 154 (Alito, J., concurring in part) (cleaned up); see also id. at 150

(Alito, J., concurring in part) (“A State’s assertion of jurisdiction over lawsuits with

no real connection to the State may violate fundamental principles that are protected

9

by one or more constitutional provisions or by the very structure of the federal system

that the Constitution created.”). Indeed, if it were not so, then a state could, by

“[i]nvoking the label ‘consent,’” acquire power over anyone, anywhere, about

anything. Id. at 168 (Barrett, J., dissenting).

Here, California is attempting to use the consent of surrogates and persons

contracting for parentage to acquire power over surrogate children who have littleto-no connection with California. In addition to being unjust to the children (see infra

§ I.B), California’s “power grab” demeans other states’ sovereign authority to provide

for the welfare of children born within their borders. See Mallory, 600 U.S. at 170

(Barrett, J., dissenting).

The United States Constitution doesn’t tolerate such

incursions into the sovereignty of co-equal States.

Another dispute unfolding in Florida illustrates the pernicious effect of

California’s scheme on interstate federalism. The person contracting for parentage

in that case, a single middle-aged man, is a citizen and resident of the People’s

Republic of China.5 The surrogate and her husband are from St. Augustine, Florida.6

The children at issue, two boys, were born in Florida in 2024.7 After the Chinese man

failed to retrieve the children for nearly two years, the surrogate and her husband,

5 See Emi Nietfeld, Whose Babies Are These? A Chinese man hired a Florida

surrogate, then didn’t pick up his kids, sparking a custody battle that could upend the

industry., New York Magazine (Aug. 11, 2026), https://perma.cc/365G-DMWV.

6 Id.

7 Id.; see also Katherine Long, A Florida Surrogate, a Father in China, and the

Babies Caught Between, Wall Street Journal (July 31, 2026), https://www.wsj.com/usnews/a-florida-surrogate-a-father-in-china-and-the-babies-caught-betweena3717a96.

10

who had raised the children in St. Augustine since their birth, filed for adoption. 8

The Chinese man then sought to domesticate a decree from Respondent Superior

Court of California, County of Los Angeles obtained with the consent of the surrogate

and her husband shortly after the children’s birth.9 The California decree declared

the Chinese man to be the sole legal parent and awarded him full legal and physical

custody.10

Florida’s Attorney General intervened.

He argues that, because the

California court lacked jurisdiction under the PKPA and the Uniform Child Custody

and Jurisdiction Enforcement Act (UCCJEA), the California decree is unenforceable.

Nevertheless, the Florida trial court gave full faith and credit to the California

decree’s parentage determination.11 That ruling is on appeal.12

China, in fact, is the California surrogacy mill’s biggest client. One 2024 study

reported that foreigners’ use of American surrogates to acquire children is

skyrocketing, from 780 cases in 2014 to 3,240 cases in 2019—the most recent year for

which data is available.13 Sixty-five percent of international surrogacy agreements

are facilitated by surrogacy agencies and in vitro fertilization clinics in California,

and Chinese nationals account for 41.7% of all international surrogacy agreements.14

8 Nietfeld, supra.

9 Id.

10 Id.

11 Order, Zhou v. Simpson, No. 2026-DR-001134, DIN No. 250 (Fla. 7th Cir. Ct.

Aug. 19, 2026).

12 Uthmeier v. Zhou, No. 5D26-2569 (Fla. 5th DCA).

13 Alexandra Herweck et al., International gestational surrogacy in the United

States, 2014–2020, 121 Fertility & Sterility 622 (Apr. 2024), https://perma.cc/PEK32CKD.

14 Id.

11

California’s Chinese clientele exploit surrogacy in alarming ways.

For

example, in 2025, law enforcement raided the Arcadia, California mansion of Guojun

Xuan (age 65) and Silvia Zhang (age 38) due to suspected child abuse. 15 Authorities

discovered that Xuan and Zhang had procured 26 children, most under the age of 3,

by recruiting surrogates from several states, including Amici State of Florida.16

Reports note that the children had been given “gender-neutral” haircuts and clothing,

“like soldiers,” and were being raised, and abused, by “six house staff.” 17 California

authorities removed the children from the home, one of whom required treatment for

a severe head injury.18

Federal authorities continue to investigate the couple’s

actions and motives.19

Unfortunately, there are more examples. One is Xu Bo, a reclusive Chinese

videogame billionaire who reportedly has acquired “more than 100 children born

through surrogacy in the U.S.”20 “Another wealthy Chinese executive, Wang Huiwu,

hired U.S. models and others as egg donors to have 10 girls, with the aim of one day

marrying them off to powerful men, according to people close to the executive’s

15 Ava Kofman, The Babies Kept in a Mysterious Los Angeles Mansion, The

New Yorker (Feb. 9, 2026), https://perma.cc/A5US-L2AJ; Rob Hayes, 21 children - all

with surrogate mothers - taken from couple amid investigation, ABC Eyewitness News

(July 16, 2025), https://perma.cc/47NF-CXQ2.

16 Id.

17 Cara Tabachnick et al., Their 21 kids were taken by the state. Now they're

fighting for custody of even more surrogate-born babies, CBS News (Jan. 13, 2026),

https://perma.cc/AB2N-T2Y6.

18 Id.

19 Id.

20 Katherine Long et al., The Chinese Billionaires Having Dozens of U.S.-Born

Babies Via Surrogate, The Wall Street Journal (Dec. 13, 2025).

12

education company.”21 California’s perverse surrogacy system is child trafficking,

plain and simple.

The Florida Legislature responded by enacting HB 905, which deems

gestational surrogacy contracts void and unenforceable if any party is a citizen or

resident of China or another foreign country of concern. Fla. Stat. § 742.15(1)(b). But

according to Karen Persis, an “assisted reproductive technology attorney” in Florida,

HB 905 “honestly is not really going to stop” citizens and residents of foreign countries

of concern from entering into gestational surrogacy agreements with women in

Florida and obtaining children born in Florida—“[t]hey’re all just going to enter into

agreements [and obtain pre-birth orders] in California.”22

If N.G. and O.A. were right about full faith and credit (they are not, see infra

§ II), the Superior Court’s Order would guarantee that outcome: It broadcasts to

every surrogacy practitioner in the country that California will get the final word on

parentage whenever the parties to the surrogacy contract seek a judgment there—no

matter where the persons contracting for parentage, surrogate, or child live.

B. The California Order violates Baby G.’s due process rights.

“Obviously, both the child and the [adult parties]” “have a compelling interest”

in the proper adjudication of parentage. Little v. Streater, 452 U.S. 1, 13 (1981). As

California’s own appellate courts once understood: “the establishment of the parent-

21 Id.

22 Riley Phillips, St. Augustine surrogate fights for parental rights as intended

parent leaves children unclaimed for 20 months, First Coast News, (July 15, 2026),

https://www.firstcoastnews.com/article/news/investigations/surrogate-fights-forparental-rights-st-augustine/77-9d74ed3f-41c9-471b-a87e-9a4648c0345c.

13

child relationship is the most fundamental right a child possesses . . . . next to life

itself.” Ruddock v. Ohls, 91 Cal.App.3d 271, 277–78 (Cal. Ct. App. 1979).

Children therefore have a right to procedural due process in proceedings

involving “the creation of a parent-child relationship.” Id.; see also State v. Santos,

702 P.2d 1179, 1182 (Wash. 1985) (“due process protects a child’s interest in a

paternity proceeding”); see also Ferguson v. Winston, 996 P.2d 841, 846 (Kan. Ct. App.

2000) (“It is inconceivable to us that a child would not have a due process right in the

determination of his or her parentage.”). The right to procedural due process prevents

States from exercising personal jurisdiction over individuals who are not “present

within the territory of the forum” and lack “certain minimum contacts with it.” Int’l

Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310,

316 (1945).

The Superior Court determined it had personal jurisdiction based solely on the

consent of N.G., O.A., and M.W., ignoring that children also have due process rights

in parentage proceedings.

Baby’s G.’s interest in procedural due process was

extraordinarily compelling—as the Superior Court acknowledged, his survival

potentially depended on the outcome of the parentage proceedings. Appl. 8. Baby G.

was not physically present in California during the California proceedings. And even

if N.G., O.A., and M.W. had all consented to California’s jurisdiction, that consent

alone would not have created minimum contacts between California and Baby G. The

California Order therefore violated Baby G.’s right to procedural due process.

14

II.

The California Order is not entitled to full faith and credit.

Even if the Superior Court had properly exercised personal jurisdiction over

M.W. and Baby G., the California Order would not be entitled to full faith and credit.

Article IV, Section 1 of the United States Constitution states: “Full Faith and Credit

shall be given in each State to the public Acts, Records, and judicial Proceedings of

every other State. And the Congress may by general Laws prescribe the Manner in

which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Pursuant to this authority, Congress enacted 28 U.S.C. § 1738A, known as the

Parental Kidnapping Prevention Act (PKPA). The PKPA requires “[t]he appropriate

authorities of every State [to] enforce according to its terms . . . any custody

determination . . . made consistently with the provisions of [the PKPA] by a court of

another State.” 28 U.S.C. § 1738A(a). The PKPA defines “custody determination” as

“a judgment, decree, or other order of a court providing for the custody of a child.” 28

U.S.C. § 1738A(b)(3). For a decree to be consistent with the provisions of the PKPA,

the issuing state “must have jurisdiction under its own local law and one of five

conditions . . . must be met.” Thompson v. Thompson, 484 U.S. 174, 176–77 (1988).

“Briefly put,” the PKPA authorizes a state court to issue a custody determination “if

the child’s home is or recently has been in the State, if the child has no home State

and it would be in the child’s best interest for the State to assume jurisdiction, or if

the child is present in the State and has been abandoned or abused.”

Id.

(summarizing 28 U.S.C. § 1738A(c)(2)).

The California Order is “a judgment, decree, or other order of a court providing

for the custody of a child.” 28 U.S.C. § 1738A(b)(3); Appl. 8. The California Order is

15

therefore a “custody determination” for purposes of the PKPA.

However, the

California Order was not “made consistently with the provisions of th[e] [PKPA]”

because it does not meet any of the five jurisdictional criteria of 28 U.S.C.

§ 1738A(c)(2)(A) through (E):

(A) California was not Baby G.’s home state when the California proceedings

commenced. “[H]ome State” means “the State in which, immediately preceding the

time involved, the child lived with his parents, a parent, or a person acting as parent,

for at least six consecutive months, and in the case of a child less than six months old,

the State in which the child lived from birth with any of such persons.” 28 U.S.C.

§ 1738A(b)(4). The California proceedings commenced prior to Baby G.’s birth. As of

the commencement date, Baby G. had not “lived with” anyone “from birth.”

Therefore, Baby G. had no home state when the California proceedings commenced.

See, e.g., Gray v. Gray, 139 So. 3d 802, 806 (Ala. Civ. App. 2013) (“an unborn child

cannot have a home state” for purposes of the UCCJEA because he or she “has not

‘lived from birth’ in any state”); In re Marriage of Tonnessen, 941 P.2d 237, 239 (Ariz.

Ct. App. 1997) (the UCCJEA “does not contemplate the in utero period of time in

determining domicile or home state; it contemplates a postnatal child”); Thompson,

484 U.S. at 185 (explaining that the PKPA’s jurisdictional criteria are “derived

generally from the UCCJA”).

(B) No other State had jurisdiction under subparagraph (A) when the

California proceedings commenced. However, it was not in Baby G.’s best interest

that a California court assume jurisdiction because California did not have a

16

significant connection with Baby G. See Arkansas Dep’t of Hum. Servs. v. Cox, 82

S.W.3d 806, 813 (Ark. 2002) (the place of conception is “of no impact in the analysis

of jurisdiction” under the UCCJEA).

(C) Baby G. was not physically present in California when the California

proceedings commenced—he was in Alaska, in M.W.’s womb.

(D) Alaska had jurisdiction under subparagraph (B). It was in Baby G.’s best

interest that an Alaska court assume jurisdiction because Baby G.’s only significant

connection was with Alaska: From conception, Baby G. was gestated by M.W. and

monitored by doctors in Alaska. Accordingly, substantial evidence concerning Baby

G.’s present care was available in Alaska when the California proceedings

commenced. M.W.—one of the contestants in the California proceedings—also had a

significant connection with Alaska: She was a resident and citizen of Alaska. And no

Alaska court had declined to exercise jurisdiction on the ground that California was

the more appropriate forum to determine the custody or visitation of Baby G.

(E) The California court did not have continuing jurisdiction pursuant to

subsection (d) of the PKPA because it had not made a previous child custody or

visitation determination for Baby G.

Because the California Order is a “custody determination” that was not “made

consistently” with the PKPA, the United States Constitution does not require Texas

(or any other state) to give the California Order full faith and credit. 28 U.S.C.

§ 1738A(a); accord V.L. v. E.L., 577 U.S. 404, 407 (2016) (“[B]efore a court is bound

17

by a judgment rendered in another State, it may inquire into the jurisdictional basis

of the foreign court’s decree.” (quotation omitted)).23

III.

A child’s custody may not be fixed by contract—affording no inquiry

into his best interests—without offending the Equal Protection

Clause.

A child’s legal protection should not turn on the circumstances of his birth.

This Court struck down the disabilities the law once visited on children born outside

marriage because “visiting this condemnation on the head of an infant” for the

conduct of others “is illogical and unjust”; and “contrary to the basic concept of our

system that legal burdens should bear some relationship to individual responsibility

or wrongdoing”—for “no child is responsible for his birth.” Weber v. Aetna Cas. & Sur.

Co., 406 U.S. 164, 175 (1972); see also Levy v. Louisiana, 391 U.S. 68, 70 (1968)

(rejecting any notion that illegitimate children are “nonpersons” ineligible for equal

protection because “[t]hey are humans, live, and have their being”); Trimble v.

Gordon, 430 U.S. 762, 769–70, 772, 776 (1977) (invalidating an Illinois probate law

that violated the Equal Protection Clause for its discrimination against illegitimate

children); Clark v. Jeter, 486 U.S. 456, 461, 465 (1988) (striking down a Pennsylvania

paternity law that imposed an unreasonable statute of limitations on paternity

actions under the Equal Protection Clause). The throughline of these cases is that

23 The Georgia decree at issue in V.L. v. E.L. was made consistently with the

provisions of the PKPA. The couple and child resided at a rental home in Georgia for

six months prior to initiating adoption proceedings in order to establish Georgia as

the child’s home state under the PKPA and UCCJEA. V.L., 577 U.S. at 405 (“To

facilitate the adoption, the couple rented a house in Alpharetta, Georgia.”); Ex parte

E.L., 208 So. 3d 1102, 1103 (Ala. 2015) (explaining that an attorney told the couple

that they “needed to be . . . resident[s] of the state of Georgia, specifically Fulton

County, for at least six (6) months to petition for adoption in Fulton County”).

18

states may not sort children into those whose interests it will protect and those whose

interests it will disregard based on nothing the child did.

Yet that is what a pre-birth surrogacy judgment does. So far as Amici States

are aware, children whose parentage is fixed by such contract-backed judgments are

the only class of children in American law whose parentage and custody are settled

entirely by private agreement—for consideration, before birth, with no inquiry into

the child’s best interests. Cf. Johnson v. Calvert, 5 Cal. 4th 84, 118 (1993) (Kennard,

J., dissenting) (“The problem with the majority’s rule of intent[-based parentage] is

that application of this inflexible rule will not serve the child’s best interests in every

case.”); C.M. v. M.C., 7 Cal. App. 5th 1188, 1210–11 (2017) (refusing to require a “best

interest” determination as “[a] conclusion that children born to surrogates must be

placed by the state using the same criteria that apply to adoptions or custody disputes

would certainly affect—and perhaps eliminate—the willingness of intended parents

to have children through surrogacy arrangements” and, more broadly, undermine

California’s gestational-surrogacy statute—the same one at issue here (emphasis

added)).

In every other setting in which the law assigns a child from one custodian to

another—adoption, termination, custody between divorcing parents, guardianship—

the child’s welfare is the controlling consideration, and no agreement between adults

can foreclose the court’s independent assessment of it. See Ford v. Ford, 371 U.S.

187, 193–94 (1962) (observing that “Virginia law, like that of probably every State in

the Union, requires the court to put the child’s interest first” and that “custody and

19

welfare of children are not the subject of barter” (quoting Buchanan v. Buchanan, 197

S.E. 426, 434 (Va. 1938))); cf., United States v. King, 840 F.2d 1276, 1283 (6th Cir.

1988) (an agreement “affecting [child] custody [is] invalid unless ‘consistent with best

interest of child’” (quoting Restatement (Second) of Torts § 194 (1981))).

Equal protection asks not whether a favored outcome usually follows, but

whether the State may draw certain lines among people at all: here, a category of

children, defined solely by the manner of their conception and birth, whose welfare

the law refuses to consider.

When the arrangement fails—when the person

contracting for parentage proves unfit, or unwilling, or the parties’ intentions for the

child’s very existence diverge—the child conceived pursuant to the contract has no

best-interest hearing to protect him. Under California law, a child born pursuant to

a surrogacy contract—unlike those naturally conceived—is met by a court asking only

what the contract says, not what is best for the child. That is by design. C.M.., 7 Cal.

App. 5th at 1210–11. The Fourteenth Amendment does not permit that sort of

unequal treatment, and the Court should not construct a body of full-faith-and-credit

law that assumes it away. See Ford, 371 U.S. at 193 (declining to enforce a childcustody contract between parents under the Full Faith and Credit Clause because,

among other things, it was inconsistent with the child’s best interests).

IV.

A child’s custody may not be fixed by contract—affording no inquiry

into his best interests—without offending the Thirteenth

Amendment.

The Thirteenth Amendment did not balance the ownership of human beings

against competing interests. It ends, full stop, the treatment of a human being as the

object of a property right held by another. U.S. Const. amend. XIII, § 1. Even Plessy,

20

in its shameful attempt to cabin the Thirteenth Amendment, conceded that the

amendment prevents “ownership of mankind as a chattel.” Plessy v. Ferguson, 163

U.S. 537, 542 (1896).

That the arrangement here is dressed as a services contract does not change

what it does with respect to the child. A judgment of the kind California entered

recognizes—and, if respondents are right, commands every other State to recognize—

a legal interest in a human being that is created by agreement, purchased for

consideration, fixed before birth, and enforced afterward by the physical transfer of a

child. Whatever else it may be called, that is an ownership interest asserted over the

child by contract: one that includes provisions over whether the child would be

permitted to make it to birth.

To be clear, Amici States do not contend that this recapitulates the whole of

the antebellum institution. They do, however, contend that gestational surrogacy

contracts are typically premised on the central feature the Thirteenth Amendment

was ratified to forbid: property in man. See Anthony Jose Sirven, No Property in

Man: A Fading Principle, 29 Tex. Rev. L. & Pol. 211, 220–25 (2025) (examining the

property-in-man foundations of surrogacy agreements including when exercised as to

“already-born” children).24

24 See also Carter Dillard, Future Children As Property, 17 Duke J. Gender L.

& Pol’y 47, 49, 54 (2010) (arguing that IVF, surrogacy, and other agreements . . . run

afoul of the “Reconstruction Era amendments” given they “forbid[] reading the

Constitution (and most certainly [the Thirteenth and Fourteenth] amendments) as

granting a fundamental right to one class of persons to treat another class of persons

(even temporally disadvantaged people like prospective children) as property”); cf.

Barry E. Adler, Property Rights in Children, 95 Notre Dame L. Rev. 1629, 1640 (2020)

(arguing that once a surrogate is “implanted with an embryo, she becomes, in essence,

21

Lest it be forgotten, American law once recognized precisely such interests in

human life, including over unborn children. Under the doctrine of partus sequitur

ventrem (“that which is born follows the womb”), for instance, children of enslaved

women were deemed to belong to their owners from conception—with courts enforcing

the resulting interests through ordinary instruments of property, like wills, deeds,

and mortgages.

See, e.g., Banks’ Adm’r v. Marksberry, 13 Ky. 275, 280 (1823)

(reversing the trial court’s refusal to enforce a deed as to “future increase of the slave,

Pen,” and holding that “[t]he owner of a female slave may, by deed, give all the

children which she shall thereafter have” (emphasis added)); Harriet Beecher Stowe,

A Key to Uncle Tom’s Cabin 76 (John P. Jewett & Co. 1853) (“If the reader will

proceed, he will find also this principle applied with equal clearness to the hiring,

selling, mortgaging of unborn children.” (emphasis added)). Yet it is exactly that

practice—property claims in children, including those not yet born—that the

Thirteenth Amendment swept away.

For this reason, courts applying the Thirteenth Amendment have read it to

reach transfers of children, holding that it “prohibits a family [from] selling its child”

because “[o]ur law views the child as an individual with the dignity and humanity of

other individuals, not as property.” King, 840 F.2d at 1283 (relying in part on Ford,

371 U.S. at 193, as a full-faith-and-credit case refusing to enforce a custody contract).

Judges confronting that same tension in embryo-related and surrogacy disputes have

a bailee,” who would thus be “contractually obligated to relinquish the child, once

born, . . . [as] property not her own”).

22

called out what the property framework portends. Cf. McQueen v. Gadberry, 507

S.W.3d 127, 158 (Mo. Ct. App. 2016) (Dowd, J., dissenting) (“[T]he Thirteenth

Amendment removes all human beings from the category of property.”); Johnson, 5

Cal. 4th at 119 n.4 (Kennard, J., dissenting) (“It is questionable whether the

parentage of children is a proper subject of contract. But even assuming that a parent

could contract away parental rights to a child—for instance, by selling the child into

slavery—this would not logically amount to a binding ‘concession’ that such a sale

would be in the child’s best interests.”); Matter of S.D.S., 371 Or. 573, 639–40 (2023)

(Bushong, J., dissenting) (criticizing the notion that adults can “‘contract into’

parental rights without . . . [a]determination of what is in the child's best interests.”).

Even courts that have sustained commercial regulation in adjacent contexts

treat as settled the premise on which Amici States rely: “The Thirteenth Amendment

to the U.S. Constitution enshrines the principle that people may not be bought and

sold as commodities.” Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 603 (9th Cir. 2010)

(citing both the “[p]ayment for consent to adoption of a child” and “surrogacy” as

examples of human commodification); see also United States v. Hatch, 722 F.3d 1193,

1198 (10th Cir. 2013) (canvassing, as among the incidents of slavery as they were

understood at ratification, a slaveholder’s “complete control over . . . their slaves’

children”).

This case does not require resolution of this quandary today. But the questions

of whether contracts for surrogate children are enforceable under the Thirteenth

Amendment, and whether out-of-state orders enforcing contracts for surrogate

23

children are entitled to full faith and credit, are questions Amici States’ courts are

already asking—and ones this Court will need to answer in time.

CONCLUSION

California’s extraterritorial application of its race-to-the-bottom surrogacy

laws undermines federalism and poses a dire threat to women and children across

the country. Eventually, this practice will be put down by the Due Process Clause,

the Full Faith and Credit Clause, the Equal Protection Clause, and the Thirteenth

Amendment. For today, it is enough for this Court to take up the narrow question

presented by the application and stay or reverse the California Order.

24

September 11, 2026.

Respectfully submitted,

/s/ David M.S. Dewhirst

CORI MILLS

Alaska Acting Attorney General

JESSICA M. ALLOWAY

Acting Solicitor General

JAMES UTHMEIER

Attorney General

RYAN D. NEWMAN

Chief Deputy Attorney General

DAVID M.S. DEWHIRST*

Solicitor General

JASON J. MUEHLHOFF

Chief Deputy Solicitor General

SAMUEL F. ELLIOTT

Deputy Solicitor General

Department of Law

1031 West Fourth Avenue, Suite 200

Anchorage, AK 99501

(907) 269-5100

ANTHONY J. SIRVEN

CARLOS HAAG

BRIAN M. TRUJILLO

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399

(850) 414-3300

david.dewhirst@myfloridalegal.com

Lawson Huck Gonzalez, PLLC

121 Alhambra Plaza Ste. 1604

Miami, Florida 33130

(850) 825-4334

anthony@lawsonhuckgonzalez.com

*Counsel of Record

Attorneys for Amici Curiae States of Florida & Alaska

25

ADDITIONAL SIGNATORIES

STEVE MARSHALL

Attorney General

State of Alabama

CATHERINE L. HANAWAY

Attorney General

State of Missouri

TIM GRIFFIN

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL R. LABRADOR

Attorney General

State of Idaho

MICHAEL T. HILGERS

Attorney General

State of Nebraska

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

DEREK BROWN

Attorney General

State of Utah

LIZ MURRILL

Attorney General

State of Louisiana

26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.