Doctors Deny Lesbian Artificial Insemination

California Supreme Court to hear sexual-orientation discrimination case today.


May 28, 2008 — -- California's high court on Monday barred doctors from withholding medical care to gays and lesbians based on religious beliefs, ruling that state law prohibiting sexual orientation discrimination extends to the medical profession.

The ruling was unanimous, a contrast to the state Supreme Court's 4-3 schism in May legalizing gay marriage.

Justice Joyce Kennard wrote in the ruling that two Christian fertility doctors who refused to artificially inseminate a lesbian have neither a free speech right nor a religious exemption from the state's law, which "imposes on business establishments certain antidiscrimination obligations."

Guadalupe Benitez, now 36, had maintained that the California medical clinic that was treating her polycystic ovary syndrome had "dumped" her when she asked for artificial insemination.

In 1999, after a year of surgeries and hormone treatments — all covered by insurance — Benitez was finally ready to get pregnant. But at the crucial moment, her doctor refused to do the procedure for "religious" reasons.

Benitez is a lesbian and sued her doctors under California's civil rights laws, charging that they discriminated against her because of her sexual orientation. Today, the state Supreme Court will consider whether a doctor can invoke his faith to refuse a patient treatment.

"For me this is a case about doing the right thing and being fair," Benitez told "Not discriminating against people and doctors not playing the role of God, saying because you are gay, you are not worthy of having a child or a family.

"I did it not only for me, my partner and my children but for other people coming after me, so they don't have to go through the humiliation and frustration and abandonment as a patient," she said.

The case drew more than 40 friends of the court briefs from a wide variety of religious organizations, medical groups and gay civil rights organizations.

The American Civil Rights Union supported the Christian doctors, siding with the Islamic Medical Association of North America, the Christian Medical & Dental Associations and anti-abortion groups.

The California Medical Association reversed its early support of the Christian doctors after receiving a barrage of criticism from the gay rights community, joining health care provider Kaiser Foundation Health Plan to oppose the Christian doctors.

The American Civil Liberties Union, California Attorney General Jerry Brown, the National Health Law Program and the Gay and Lesbian Medical Association filed papers backing Benitez.

Benitez sued The North Coast Women's Care Medical Group of San Diego, which had an exclusive contract with her health insurance plan. Also named in the suit were two of the clinic's doctors — Dr. Doug Fenton and Dr. Christine Brody — who lawyers say had a constitutional right to refuse a procedure that violated their religious beliefs.

The case jumped through a series of legal hoops. Benitez initially filed her suit in 2000. The trial court ruled in her favor based on sexual-orientation discrimination, but the appellate court said North Coast's claim that they had been denied freedom of religion was legitimate.

"You can't opt out of the law because of your religious beliefs," said Jennifer Pizer, senior attorney for Lambda Legal Defense and Education Fund, a nonprofit that supports gay causes. "The laws have been in place for a long time. A business can't exclude you because you are gay."

"Doctors have considerable leeway in what procedures they provide," she told "But they can't pick and choose on the medically irrelevant characteristics of the patient."

Benitez, who is a medical assistant, and her partner, Joanne Clark, 49, have subsequently had three children by in-vitro fertilization at a San Diego fertility clinic — at their own cost, because they had to go "out-of-network" for their care.

As a result, the couple, who have been in a committed relationship for 18 years, said they were forced to pay for a repetition of all tests and hormone treatments. Today, they have a 6-year-old son and twin 2-year-old girls.

Their ordeal began in 1999, when Benitez was diagnosed with an ovarian condition that can cause infertility. She said North Coast "promised" one of the doctors would eventually perform artificial insemination, even though Brody specifically told them she would not do it on "lesbians."

"We had no where else to go," Clark said.

When the time came, the director of the clinic refused, "because the staff objected," said Clark, who stays at home with the children, while Benitez works as a medical assistant.

Benitez's lawyer, Pizer, compared their response to the civil rights era: "I don't treat black patients, but I will refer you to someone who will."

"It opened our eyes to discrimination," Clark said. "We knew how black people felt and didn't realize how deep it went and how on-guard it makes you."

According to North Coast lawyer Kenneth Pedroza, a "communication glitch" prevented the clinic's director, Dr. Doug Fenton, from performing the procedure. When it came time for insemination, Brody was away and had not left recent medical notes on the case for Fenton. The couple had initially requested using live sperm from a friend, rather than from a sperm bank, which was against clinic policy.

Just before going away, Brody had convinced the couple to use a sperm back, but that information had not been relayed to Fenton. The request for insemination was denied on those grounds, according to Pedroza.

Brody found a competent specialist for the couple at another clinic and even offered to pay the cost difference.