FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHANIE DELZER, on her own and No. 16-56203
on behalf of her minor children
C.O.D.1 and C.O.D.2; C.O.D.1; D.C. No.
C.O.D.2, 8:12-cv-00094-
Plaintiffs-Appellants, GW-MRW
v.
ORDER
NANCY A. BERRYHILL, Commissioner CERTIFYING
of Social Security, in her official QUESTION TO
capacity, and her employees, agents CALIFORNIA
and successors in office, SUPREME
Defendant-Appellee. COURT
Filed March 21, 2018
Before: Consuelo M. Callahan, Carlos T. Bea,
and Paul J. Kelly, Jr.* Circuit Judges.
*
The Honorable Paul J. Kelly, Jr., Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.
2 DELZER V. BERRYHILL
SUMMARY **
Certified Question to California Supreme Court
The panel certified the following questions of state law
to the California Supreme Court:
California Probate Code § 249.5 provides
that, for probate purposes, “a child of the
decedent conceived and born after the death
of the decedent shall be deemed to have been
born in the lifetime of the decedent if the
child or his or her representative proves by
clear and convincing evidence that,” inter
alia, “[t]he decedent, in writing, specifies that
his or her genetic material shall be used for
the posthumous conception of a child of the
decedent.” Cal. Prob. Code § 249.5(a). Does
a writing that specifies that some genetic
material of the decedent shall be so used
satisfy § 249.5(a), regardless whether the
genetic material specified in the putative
writing includes the genetic material actually
used to conceive the claimant child? Or must
the genetic material identified in the putative
writing include the genetic material actually
used to conceive the claimant child?
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DELZER V. BERRYHILL 3
ORDER
We respectfully ask the California Supreme Court to
answer the certified question set forth below. The answer to
this question will determine the outcome of this appeal, and
there is no controlling precedent in the decisions of the
California Supreme Court. Although we are mindful that our
certification request adds to the substantial caseload of the
California Supreme Court, this case raises an important
question of California law which has important implications
for Social Security claims, such as the one at issue here, as
well as intestacy claims in California. Californians need to
know how to make effective their wishes as to these
supremely sensitive and important decisions. For these
reasons, “considerations of comity and federalism suggest
that the court of last resort in California, rather than our
court, should have the opportunity to answer the question[]
in the first instance.” Mendoza v. Nordstrom, Inc., 778 F.3d
834, 836 (9th Cir. 2015), certified question answered, 2 Cal.
5th 1074 (Cal. 2017).
QUESTION CERTIFIED
Pursuant to Rule 8.548 of the California Rules of Court,
we respectfully request that the Supreme Court of California
answer the following question:
California Probate Code § 249.5 provides
that, for probate purposes, “a child of the
decedent conceived and born after the death
of the decedent shall be deemed to have been
born in the lifetime of the decedent if the
child or his or her representative proves by
clear and convincing evidence that,” inter
alia, “[t]he decedent, in writing, specifies that
his or her genetic material shall be used for
4 DELZER V. BERRYHILL
the posthumous conception of a child of the
decedent.” Cal. Prob. Code § 249.5(a). Does
a writing that specifies that some genetic
material of the decedent shall be so used
satisfy § 249.5(a), regardless whether the
genetic material specified in the putative
writing includes the genetic material actually
used to conceive the claimant child? Or must
the genetic material identified in the putative
writing include the genetic material actually
used to conceive the claimant child?
In response to this question, the California Supreme Court
shall not be bound by the manner in which the question has
been phrased by this court. Nor shall our formulation of the
question restrict the California Supreme Court’s
consideration of the issues involved. Cal. R. Ct. 8.548(f)(5).
We agree to follow the decision of the California Supreme
Court. Cal. R. Ct. 8.548(b)(2).
ADMINISTRATIVE INFORMATION
We provide the following information in accordance
with California Rule of Court 8.548(b)(1). The caption for
this case is:
STEPHANIE DELZER, on her own and on
behalf of her minor children C.O.D.1 and
C.O.D.2; C.O.D.1; C.O.D.2, Plaintiffs-
Appellants,
v.
NANCY A. BERRYHILL, Commissioner of
Social Security, in her official capacity, and
DELZER V. BERRYHILL 5
her employees, agents and successors in
office, Defendant-Appellee.
The names and addresses of counsel are:
For Plaintiffs-Appellants, Hagit Muriel Elul,
Esq. and Fara Tabatabai, Hughes Hubbard &
Reed LLP, 17th Floor, One Battery Park
Plaza, New York, NY 10004-1482.
For Defendant-Appellee, Margaret Branick-
Abilla, Esq., Social Security Administration,
Office of the General Counsel, 160 Spear
Street, San Francisco, CA 94105; Jessica O.
Cheh, Assistant U.S. Attorney, USLA -
Office of the U.S. Attorney, 300 North Los
Angeles Street, Los Angeles, CA 90012.
As required by Rule 8.548(b)(1), we designate Stephanie
Delzer and her claimant children, C.O.D.1 and C.O.D.2, as
the petitioners, if our request for certification is granted.
They are the appellants before our court.
BACKGROUND
Owen Delzer (“Mr. Delzer”) and Stephanie Delzer, née
Tanaka (“Ms. Delzer”) married in 1997. The couple was
unable to conceive a child by natural means; the couple
began fertility treatment involving in-vitro fertilization
(“IVF”) in October 1998.
On October 8, 1998, the Delzers executed a Patient
Information and Informed Consent Form (“Informed
Consent Form”) consenting to “In Vitro Fertilization and
Embryo Transfer.” The Informed Consent Form described
a standard Assisted Reproductive Technology (“ART”)
6 DELZER V. BERRYHILL
procedure, explained the risks of a standard ART procedure,
noted available alternatives to undergoing ART procedures,
and provided that the Delzers consented to undergoing ART
procedures and permitted their physician to perform “any or
as many of the procedures described above as they, in their
professional judgment, believe are indicated.” The Informed
Consent Form also asked the Delzers to decide what to do
with any embryos that were not immediately transferred to
Ms. Delzer. 1 It provided that the Delzer’s options included
(1) cryopreservation 2 for their own future use, (2) donation
to another couple, or (3) disposition “in an ethical and legal
manner.” In an addendum to the Informed Consent Form
(“Addendum”), the Delzers indicated that they wished for
the fertility care clinic to inseminate all harvested oocytes,
transfer up to five embryos to Ms. Delzer, and
“cryopreserve” (freeze) any remaining embryos “for future
transfer.”
Because they elected to cryopreserve any surplus
embryos, the Delzers also executed a “Human Embryo
Cryopreservation Information and Informed Consent Form
(“Cryopreservation Form”). Like the general Informed
1
The form explains that “[t]he decision of how many embryos to
transfer back [after fertilization] is an important one” because
“[t]ransferring more embryos back increases the risk of multiple
gestation,” meaning twins, triplets, or higher order pregnancies, but
“[t]ransferring fewer embryos back decreases the chance of pregnancy.”
2
“Cryopreservation” is the “preservation (as of cells) by subjection
to extremely low temperatures,” i.e. freezing. CRYOPRESERVATION,
Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/cryopreservation.
DELZER V. BERRYHILL 7
Consent Form, it advised the Delzers of the risks 3 and
benefits of cryopreserving the embryos. The form explained
that the Delzers were “the owners of the frozen embryos in
joint custody and must make all decisions regarding the
disposition of the embryos. It also asked the Delzers to
indicate what should be done with any cryopreserved
embryos in the following instances:
1. In the event of the death of both of us.
2. One year after failure to pay storage fees.
3. If the marriage ends in divorce.
4. If both of us fail to maintain contact with
the program for a period greater than 1 year.
On the form, the Delzers stated that they were “declaring
[their] intention to continue using these embryos” but that
they requested the clinic to “[d]iscard the embryos in a
professional, moral, legal and ethical manner” in any of the
four enumerated circumstances. The form provided that the
Delzers could change this decision “by revising this consent
in writing.”
About two weeks after executing these consent forms,
Mr. Delzer deposited sperm at a fertility clinic to be used in
the IVF procedure. Two vials of extra sperm were
cryopreserved as “back-up” in the event the initial rounds of
IVF failed. The IVF procedure produced embryos, including
surplus embryos which were cryopreserved. Between
3
Presciently, the form warned that “[t]here are many unresolved and
potentially unencountered legal situations involving cryopreserved
embryos which have not be [sic] clearly regulated by existing laws.”
8 DELZER V. BERRYHILL
October 1998 and March 1999, the couple attempted several
cycles of IVF, without success.
In April 1999, Mr. Delzer was diagnosed with terminal
cancer. He died on July 20, 1999, just four months later. On
February 16, 2001, Mr. Delzer’s cryopreserved sperm was
used to fertilize eggs from Ms. Delzer. These resulting
embryos, rather than any embryos which existed at the time
of Mr. Delzer’s death, were transferred to Ms. Delzer on
February 19, 2001, and resulted in the twin pregnancy and
birth of Ms. Delzer’s two children, C.O.D.1 and C.O.D.2.
In February 2002, Ms. Delzer filed applications on
behalf of C.O.D.1 and C.O.D.2 for child’s insurance
benefits 4 based on the wage earnings of their deceased
father, Mr. Delzer. The Social Security Administration
(“Administration”) denied her claim on March 2, 2002. The
Administration reconsidered her claims and again denied
them on May 27, 2008. 5 On July 22, 2008, Ms. Delzer
timely requested a hearing before an Administrative Law
Judge (“ALJ”). On February 1, 2010, the ALJ rendered
decisions in each of the Delzer children’s cases. The ALJ
held that the Delzer children could not satisfy § 249.5
because they failed to submit any “paper that is signed and
dated prior to the decedent’s death that he consented to the
4
The Social Security Act provides for financial benefits for a child
who was dependent upon an individual wage-earner entitled to benefits
under the statute at the time of that individual wage-earner’s death. 42
U.S.C. § 402(d).
5
In the reconsideration decision, the Administration apologized for
the “long delay” in processing Ms. Delzer’s requests for reconsideration,
but did not offer any explanation for the six-year delay.
DELZER V. BERRYHILL 9
use of his frozen sperm after his death.” While the ALJ
noted that the Informed Consent Form and Cryopreservation
Form “authoriz[ed] the use of the [Delzers’] frozen embryos
after their death,” he found that those forms were “only for
the continued use of the embryos[,] not the deceased’s frozen
sperm.”
On January 19, 2012, Ms. Delzer filed an action in the
U.S. District Court for the Central District of California
which sought review of the ALJ’s decisions under 42 U.S.C.
§§ 405(g). 6 The district court stayed the action pending a
decision in the Supreme Court in Astrue v. Capato, 566 U.S.
541 (2012). 7 Dkt. 12, 12-cv-00094 (C.D. Cal. Feb. 15,
2012). The Supreme Court issued its decision in May 2012,
566 U.S. 541, and on July 26, 2012, the district court granted
the Administration’s motion to remand the action for further
administrative proceedings. Dkt. 20, 12-cv-00094 (C.D.
Cal. July 26, 2012).
On remand, the ALJ held a hearing on July 24, 2013.
The ALJ issued her Amended Recommended Decisions on
6
“Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party, irrespective
of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days . . . in the district court of the
United States for the judicial district in which the plaintiff resides . . . .”
42 U.S.C. § 405.
7
Capato considered whether, under the Social Security Act, a child
needs to show only that they are the biological child of the deceased
insured individual, or if they also need to show that they would qualify
for inheritance from the decedent under state intestacy law, pursuant to
42 U.S.C. § 416(h). 566 U.S. at 544–45. The Court held that the
Administration’s interpretation of the Act to require that biological
children also satisfy § 416(h) was reasonable and entitled to Chevron
deference. Id. at 545.
10 DELZER V. BERRYHILL
January 9, 2014. The ALJ again found that the Delzer
children did not qualify as children of Mr. Delzer under
§ 249.5. The claimants argued that the Informed Consent
Form and Addendum satisfied § 249.5. But the ALJ again
found that this writing was not sufficient because it was
“silent as to possible use . . . of any extra sperm deposited by
Mr. Delzer,” and it was that sperm which was the “genetic
material” used to conceive the Delzer children.
The U.S. District Court for the Central District of
California reopened the case on March 17, 2015, and the
parties cross-moved for summary judgment. The magistrate
judge issued his Report and Recommendation (“R&R”),
which affirmed the agency’s denial, on October 22, 2015.
Like the ALJ, the magistrate judge found that there was “no
written statement presented to the agency directly related to
Mr. Delzer’s sperm donation.” On June 21, 2016, District
Judge George H. Wu accepted the findings and
recommendations of the magistrate judge. On August 22,
2016, Appellants timely filed their Notice of Appeal.
REASONS FOR CERTIFICATION
To be entitled to child’s insurance benefits under the
Social Security Act, a claimant must prove that he or she is
the “child” of the insured decedent. 42 U.S.C. § 402(d)(1).
The claimant is a “child” of the decedent, for purposes of the
Act, if he would qualify to inherit from the decedent under
the intestacy laws of the state in which the deceased was
domiciled at the time of his death. Id. § 416(h)(2)(A).
Here, there is no dispute that the Delzer children are
entitled to the claimed benefits if they meet the requirements
of California Probate Code § 249.5. That provision
specifically addresses posthumously conceived children. It
provides that, for probate purposes, “a child of the decedent
DELZER V. BERRYHILL 11
conceived and born after the death of the decedent shall be
deemed to have been born in the lifetime of the decedent if
the child or his or her representative proves by clear and
convincing evidence that,” inter alia, “[t]he decedent, in
writing, specifies that his or her genetic material shall be
used for the posthumous conception of a child of the
decedent” and the “specification [is] signed by the decedent
and dated.” Cal. Prob. Code § 249.5. Because § 249.5
requires written proof of the putative “specification,” Mr.
Delzer’s intentions and desires are not relevant except as
they are expressed in writing in the record. The only signed
writings in the record that plausibly “specify” that Mr.
Delzer intended for his genetic material to be used to
conceive children after his death are the Informed Consent,
Addendum, and Cryopreservation Forms.
Appellants argue that “Section 249.5(a) does not require
that a decedent consent to a particular sample or type of
genetic material—it requires only that a decedent consent to
the posthumous use of his or her ‘genetic material.’”
Therefore, they say, § 249.5 is satisfied as to C.O.D.1 and
C.O.D.2 because Mr. Delzer “clearly expressed” in the
Cryopreservation From “that his wife would have the ability
to use his genetic material”—the cryopreserved embryos—
“to conceive children even after his death.” The government
answers that “the consent forms that Mr. Delzer signed
specifically addressed only the embryos that the couple had
created, not his cryopreserved sperm and not ‘genetic
material’ generally.” The government argues that “sperm
and embryos are not the same thing,” and therefore “it was
not reasonable to assume that Mr. Delzer’s written intentions
regarding disposition of embryos created while he was alive
would apply to frozen sperm that had not been used for
fertilization during his lifetime.”
12 DELZER V. BERRYHILL
“As we read California law, we are uncertain whether the
district court correctly or incorrectly interpreted the relevant
statute[].” Mendoza v. Nordstrom, Inc., 778 F.3d 834, 841
(9th Cir. 2015) (certifying a question of statutory
interpretation to the California Supreme Court). On one
hand, as Appellants argue, the statute does not explicitly
state that the “genetic material” in the writing must include
the genetic material actually used to conceive posthumously.
But, on the other hand, the statute does require that the
writing make a “specification” 8 as to using the decedent’s
genetic material for that purpose. Phelps v. Stostad, 16
Cal.4th 23, 32 (Cal. 1997) (“If possible, significance should
be given to every word, phrase, sentence and part of an act
in pursuance of the legislative purpose.”). These terms may
be read to require a proffered writing to identify the genetic
material by which posthumous conception may occur.
Kucana v. Holder, 558 U.S. 233, 243 (2010) (“‘Specified’ is
not synonymous with ‘implied’ or ‘anticipated.’”).
We are also uncertain as to which interpretation of the
statute better carries out the legislature’s stated intent to
“focus[] on the intent of the decedent.” Assem. Com. on
Judiciary, California Bill Analysis, A.B. 1910 Assem.,
5/04/2004; see also Vernoff, 568 F.3d at 1111 (holding the
purpose of § 249.5 was to provide intestacy rights to
posthumously-conceived children only “where it is
guaranteed the decedent consented to the procedure and the
8
“The dictionary defines ‘specify’ as ‘name or state explicitly or in
detail.’ (Webster’s 7th New Collegiate Dict. (1970) p. 839.) . . .
According to the same dictionary, ‘specify’ also means ‘to include as an
item in a specification.’” In re Julian R., 47 Cal.4th 487, 497 (Cal. 2009).
“Specification” is “[t]he act of making a detailed statement, esp. of the
measurements, quality, materials, or other items to be provided under a
contract.” SPECIFICATION, Black’s Law Dictionary (10th ed. 2014).
DELZER V. BERRYHILL 13
conception is timely”). Courts interpreting a California
statute “must give [the] statute[] a reasonable construction
which conforms to the apparent purpose and intention of the
lawmakers. . . . ’” Clean Air Constituency v. California State
Air Resources Bd., 11 Cal.3d 801, 813–814 (Cal. 1974).
Deeming consent to posthumous conception under specific
and limited circumstances to be consent to posthumous
conception under different, non-included circumstances, as
Appellants here urge us to do, would seem to unmoor the
inquiry from the decedent’s written intent and allow for
recognition of posthumous conceptions under conditions
that the decedent never anticipated, let alone “specified” in
writing. Cf. Cal. Civ. Code § 1648 (“However broad may be
the terms of a contract, it extends only to those things
concerning which it appears that the parties intended to
contract.”). Conversely, however, an implied specificity
requirement will sometimes defeat the intent of decedents
who had no way of anticipating what particular sample of his
genetic material or what particular method of conception
would ultimately prove successful.
This question meets the criteria for certification. “On
request of the United States Supreme Court, a United States
Court of Appeals, or the court of last resort of any state,
territory, or commonwealth, the Supreme Court may decide
a question of California law if: (1) The decision could
determine the outcome of a matter pending in the requesting
court; and (2) There is no controlling precedent.” Cal. R. Ct.
8.548; Mendoza, 778 F.3d at 839 (certifying question of
statutory interpretation where the court “f[ound] both
interpretations plausible,” “found no legislative history that
bears on th[e] question,” and “found [no] California
appellate case that answers it”), certified question answered,
2 Cal. 5th 1074 (Cal. 2017). First, this question is
dispositive. If written consent to posthumous conception by
14 DELZER V. BERRYHILL
some means satisfies the statute as to posthumous conception
by any means, then Appellants have met the applicable
statutory requirements, and the district court should be
reversed. But if § 249.5 requires specific written consent to
the use of the genetic materials as actually used to achieve
posthumous conception, then the claimants have not met
their evidentiary burden under the statute, and the district
court should be affirmed. Second, there is no controlling
precedent.
STAY OF PROCEEDINGS AND WITHDRAWAL OF
SUBMISSION
The Clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of the record, and an original and
ten copies of this order and request for certification, along
with a certification of service on the parties, pursuant
to California Rule of Court 8.548(c), (d). The Clerk is
further directed to administratively close this docket,
pending further order.
The submission of this appeal is withdrawn, and all
further proceedings in this case before our court are stayed
pending final action by the Supreme Court of California,
save for any petition for rehearing regarding this order. The
parties shall notify the Clerk of this court within fourteen
days of the Supreme Court of California’s acceptance or
rejection of certification, and again, if certification is
accepted, within fourteen days of the Supreme Court of
California’s issuance of a decision.
QUESTION CERTIFIED; PROCEEDINGS
STAYED.