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WHEN RIGHTS COLLIDE Doctor and patient both say their liberty was violated Wyatt Buchanan, Chronicle Staff Writer
Friday, July 29, 2005
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 taken the position that, in addition to being able to choose which procedures they perform, doctors should in some situations be able to choose whom they treat.
A trial court judge ruled in 2003 that the doctors attending to Guadalupe Benitez of Oceanside (San Diego County) could 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.
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.
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