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IN THE COURTS | Calif. Supreme Court Weighs Whether IVF Can Be Denied Based on Sexual Orientation

IN THE COURTS | Calif. Supreme Court Weighs Whether IVF Can Be Denied Based on Sexual Orientation
[May 29, 2008]

The California Supreme Court on Wednesday heard arguments in the case of a woman who claims she was denied in vitro fertilization by her physicians because she is a lesbian, the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 5/29). According to the AP/Minneapolis Star Tribune, the case is "closely being watched" by some advocates who think it could impact physician responsibility for other medical procedures, including abortion and end-of-life decisions (Leff, AP/Minneapolis Star Tribune, 5/28).

The case started in 2000 when two physicians, Christine Brody and Douglas Fenton, refused to perform IVF for Guadalupe Benitez, a lesbian who lives with her partner in an area north of San Diego (Daily Women's Health Policy Report, 8/3/07). Benitez in 2001 sued the physicians, claiming that they violated a California state law that bars for-profit businesses from "arbitrarily" discriminating against clients based on characteristics such as race, age and sexual orientation, the AP/Star Tribune reports (AP/Minneapolis Star Tribune, 5/28). According to the Chronicle, the state Supreme Court prior to 2000 had ruled that businesses could not deny services based on sexual orientation but did not bar discrimination based on marital status until 2005.

Benitez's attorneys said in sworn declarations that the physicians said they refused IVF for Benitez because their Christian beliefs barred them from providing fertility treatments to lesbian couples but in later depositions claimed they would have denied treatments to any unmarried couple (San Francisco Chronicle, 5/29). A trial court sided with Benitez, but the ruling was overturned by an appellate court. The appellate court noted that at the time that Benitez sought treatment, California civil rights law still allowed businesses to restrict their clientele based on a customer's marital status. Robert Tyler, who is representing Brody and Fenton, said the physicians acted in a compassionate and ethical manner, referring Benitez to the fertility specialist who helped her conceive and offering to pay for extra costs.

The American Civil Liberties Union, California Attorney General Jerry Brown (D), the National Health Law Program and the Gay and Lesbian Medical Association have filed briefs supporting Benitez. The American Civil Rights Union, the Islamic Medical Association of North America, the Christian Medical and Dental Associations, the California Catholic Conference, the American Association of Pro Life Obstetricians and Gynecologists, and Americans United for Life are backing the physicians (AP/Minneapolis Star Tribune, 5/28).

Hearing

During the hearing Wednesday, Benitez's attorney Jennifer Pizer said, "Doctors have the freedom, and rightly so, to pick their field and offer whatever procedures and protocols are appropriate for them," adding, "They do not have the freedom to discriminate against patients." State Supreme Court Associate Justice Kathryn Werdegar asked Pizer why the physicians' attempt to refer Benitez to another doctor was "not an accommodation of what we know is very important -- religious freedom -- and the accommodation of a person's right to be free from discrimination." Pizer said such a scenario would create a segregated medical system that discourages people from seeking treatment and asked judges to consider whether a physician could claim religious freedom to deny treatment based on race (Leff, AP/Google.com, 5/28).

Chief Justice Ronald George asked Kenneth Pedroza, an attorney for the physicians and their clinic, whether physicians would have a right to deny treatment to ethnic minorities based on religion. Pedroza said that he knows of no religious doctrine that forbids treatment of minorities but added that the law must accommodate someone who held those beliefs. Pedroza also was questioned "skeptically" by Associate Justice Carol Corrigan, the Chronicle reports. Corrigan suggested that physicians' only options were to choose fields of practice that do not conflict with their religious beliefs or to provide services to anyone who needs them. She told Pedroza that the physicians were, in effect, telling Benitez they would not treat her because of who she is. Pedroza said the physicians were saying they would not compromise their "sincerely held religious belief" (San Francisco Chronicle, 5/29).