WHEN RIGHTS COLLIDE
Doctor and patient both say their
liberty was violated
Wyatt Buchanan, sfgate.com from the
Web. August 2, 2005
San Francisco, July 29 -- A
Southern California lesbian who sued her doctors for discrimination after they
refused to artificially inseminate her is now fighting both them and the state's
largest medical association over whether doctors should have the right to refuse
treatment on religious grounds.
The California Medical Association has not taken a position on the facts of the
case and believes a jury should hear the arguments.
A trial court judge ruled in 2003 that the doctors attending to Guadalupe
Benitez of Oceanside (San Diego County) could not claim a religious exemption
from performing the procedure on her and that decision is now on appeal before a
San Diego appellate court.
A group of gay and minority rights organizations said this week in a court
filing that siding with the 30,000-member medical association would pave the way
for widespread discrimination under the guise of religion.
"If the position that's being promoted by the California Medical Association and
the physicians in the case carries the day, then we've blown a hole in civil
rights protections in the state of California," said Joel Ginsberg, executive
director of the San Francisco-based Gay and Lesbian Medical Association, one of
the 16 groups that filed a brief in Benitez's case.
Ginsberg offered the hypothetical examples of an Orthodox Jewish restaurant
owner who refuses to allow men and women to sit together or a Muslim shop owner
barring women who do not wear head coverings.
A medical association spokesman said the group is taking a narrow position that
applies only to the circumstances of this case. Spokesman Peter Warren said the
doctors did not refuse Benitez treatment based on her sexual orientation but on
her marital status.
"The effort to say the California Medical Association is supporting
discrimination is not accurate and is not what we're doing," said Warren, who
noted the group's long-standing support of medical rights for gays and lesbians.
"It's a bigger issue of whether a religious claim ever ought to be allowed under
state law."
Benitez's lawyer disagreed.
"Whatever the motive was, whether marital status or sexual orientation, it's an
issue of whether religion gives people a free pass to ignore laws that apply to
everybody else," said Jennifer Pizer, senior attorney for the Western regional
office of the Lambda Legal Defense and Education Fund, an organization that
specializes in gay and lesbian legal issues. "Any type of discrimination that
today is illegal, it would be open season on any of those because religious
freedom deems it not discrimination anymore."
Benitez said her doctor told her and her partner of 11 years during their first
visit to the clinic in 1999 that she would not perform a certain type of
artificial insemination on Benitez because Benitez is gay.
Benitez said she was speechless at first but the doctor then told her that
another physician at North Coast Women's Care Medical Group -- the only
fertility clinic covered by Benitez's health plan -- would perform the
insemination when the time came.
"After she said that, I said, 'OK, we're OK. I respect your decision, as long as
you're saying another physician will help me.' But obviously that wasn't the
case," Benitez said.
Benitez's doctor treated her extensively, but when it came time to inseminate
her with a syringe inserted into her uterus, all of the doctors at the clinic
refused.
Whether they did that on the grounds of her sexual orientation or marital status
is important because the Unruh Act, which protects the civil rights of
Californians in business and commercial settings, protects people from
discrimination based on sexual orientation but not marital status.
The California Medical Association has argued that the doctor had the right to
refuse Benitez treatment because of a religious conviction against unwed
parents.
Once the Fourth District Court of Appeal in San Diego rules whether the doctor
can make that argument the case will return to Superior Court for trial.
Benitez's lawyers say her doctors didn't raise her marital status until five
years after the case began.
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| Guadalupe Benitez (left), who received treatment at
another clinic, is shown with her partner, Joanne Clarke, and son, Gabriel |
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In fact, Benitez's doctor, Christine
Brody, said in a sworn statement in the case that she would not perform the
procedure because it was against her religious belief to do so on a gay couple.
And in a deposition, Brody said she would not perform the procedure on a legally
married gay couple.
"It could very well be that the jury sees the deposition transcript and then
hears testimony and they won't believe the physician," said Susan Penney, legal
counsel for the medical association. "That's a different issue; that is arguing
the facts of the case. We're not engaged in arguing the facts of the case, we're
involved with what evidence the jury should hear in the case."
Benitez, who is now 33, transferred to another clinic where she underwent in
vitro fertilization, became pregnant and eventually gave birth to a boy who is
now 3 1/2 years old.
The original clinic covered the extra expenses for Benitez's care, and her
health insurance has made an exception for her that allows her to receive care
outside her plan. Benitez, who is pregnant again, this time with twins, said she
is fighting the case on principle.
"If you provide a fertility service, you should do it for everybody, not just
one person. It's a business, not a religion. I respect religious beliefs, but
you just don't pick and choose who to treat, especially if they have a medical
condition," Benitez said.
Benitez initially hired her own lawyer, but several attorneys now back her as
her cause has drawn broader attention.
Historically, courts have exempted physicians from performing certain medical
procedures -- like abortion or end-of-life care like removal of feeding tubes --
on religious grounds, but not from deciding who can be a patient, said Dr. Elena
Gates, a medical ethics expert and interim chair of the department of
obstetrics, gynecology and reproductive sciences at UC San Francisco.
"In this situation, I don't think there is anything medical about it. It's about
deciding who can be a parent," Gates said.
Fertility doctors struggled when insemination technology first became available
with questions of who should be allowed to receive treatment, and it was at
first limited to married couples. While those restrictions have loosened over
time, fertility doctors often feel responsible for the children they help bring
into the world and do not want to introduce children to an unhealthy family
situation, Gates said.
"But then, when is it prejudice and when is it good judgment?" she said. "That's
a really hard line to draw. Here in California, it's discrimination, but maybe
somewhere else it's good judgment."
E-mail Wyatt Buchanan at
wbuchanan@sfchronicle.com.
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