Lesbian Refused IVF Treatment in California

Pamela Merritt

A case before the California Supreme Court, brought by a woman refused in vitro fertilization by her doctors because she is a lesbian, serves as a reminder that medical discrimination is still a real threat for many Americans.

Imagine going to a doctor for
medical treatment and hearing that doctor say that she won’t treat
you because of who you are. Not that she can’t treat you because
of your medical condition doesn’t match up to her expertise, but that she won’t treat you because doing
so would violate her religious convictions. It brings to mind some of
the most wretched moments in history, when nations adopted laws that
denied citizens equal treatment based on their race, religion, and cultural
background. As comforting
as it may be to think that such events are a thing of the past, a case coming before
the California Supreme Court
brought by a woman refused in vitro fertilization (IVF) by her doctors because she is
a lesbian, serves as a reminder that medical discrimination is still
a real threat for many Americans.

Guadalupe Benitez of Oceanside,
California, went to a local medical practice that was covered by her
insurance to receive treatment for polycystic ovarian
In 1999, she was finally ready to attempt to get pregnant through artificial
insemination. That’s when her doctors, citing religious objection to aiding lesbian parenthood, refused to perform the procedure. Benitez, now
36 and the mother of a 6-year-old boy and 2-year-old twin
girls, sued her doctors for discrimination based on sexual orientation.

Benitez alleges that her doctors
treated her with fertility drugs but refused to conduct the IVF procedure
saying that doing so for a lesbian patient went against their religious
beliefs. She also alleges that her doctors gave her instruction
on how to inseminate herself but refused to handle the procedure themselves.
Benitez’s doctors, Christine Brody and Douglas Fenton, refused to
perform the IVF procedure for her in 2000. In 2001, Benitez she sued them,
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 Daily Women’s Health Policy Report notes.
Prior to 2000, the California Supreme Court had ruled that businesses
could not deny services based on sexual orientation but it did not rule
against discrimination based on a person’s marital status until 2005.

In sworn declarations Benitez’s
attorneys said that her doctors stated that they refused her IVF based
on their Christian beliefs, which they said prohibited them from providing
the treatment to lesbians. However, in later depositions the doctors
claimed that their beliefs prohibited them from providing the treatment
to any unmarried couples regardless of their sexual orientation.
Although a trial court ruled in favor of Benitez, that ruling was over
turned by an appellate court, which noted that California civil rights
law at the time did allow businesses to deny services based on a person’s
marital status. Now the case, which has been brought to address the issue of whether a doctor’s religious views can be used as a defense for refusing treatment, is before the California Supreme Court with a ruling expected in the next 90 days.

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Until 2005,
women could be denied medical treatment for infertility in California
because they were not married on the grounds that assisting them in
getting pregnant was a sin. History reminds us that many women
were refused prescriptions for the pill because they were not married.
If the California Supreme Court rules that doctors may refused lesbians
treatment based on their religious beliefs, would they also be allowed
to use that defense to refuse treatment to people of color, people of
a different faith or atheists?

Those questions should not
be casually dismissed. The refusal of services based on religious
grounds is a defense used by pharmacists who refuse to fill prescriptions
throughout America. The National Women’s
Law Center
that refusals to fill contraception or emergency contraception prescriptions
by pharmacists are increasing nationwide. These refusals are particularly
problematic in rural areas and for low-income patients who may not have
other pharmacy options. The National Women’s Law Center’s Pharmacy Refusal
Project works to address the problem of pharmacy refusals by developing
legal approaches to secure the right to access contraception at the
pharmacy and providing technical assistance for people who have been denied

It is important to note that there is a difference between the denial of IVF based on the patient’s sexual orientation and the refusal to fill a prescription because of a religious objection to the purpose of the medication. The denial of IVF based on a patient’s sexual orientation is a case of discrimination against an individual while the refusal to fill a prescription is based on a personal objection to the medication itself and/or the service requested, not the individual requesting that service. The Committee on Ethics of The American College of Obstetricians and Gynecologists (ACOG) addressed conscientious refusal in their November 2007 opinion titled The Limits of Conscientious Refusal in Reproductive Medicine. The abstract of the opinion explains that

…conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient’s health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequities. Conscientious refusals that conflict with patient well-being should be accommodated only if the primary duty to the patient can be fulfilled.

In the Benitez case, her doctors did not refuse to treat her after the initial consultation and then refer her to another physician. They treated her as their patient for quite some time and then refused her the IVF procedure because of who she is, and that is a deviation from the guidelines stressed in the ACOG opinion and the basis for the discrimination lawsuit.

The denial of medical services
based on religious grounds is clearly a defense of discrimination that
could impact all women. Guadalupe Benitez
will soon find out

the California Supreme Court’s ruling in her case. Although
she was able to find other medical treatment and she now has three children,
Benitez says that the out of pocket costs were not covered by her insurance
and that those costs were significant. I can’t help but wonder how
many other women and couples have faced the same situation and were not able
to find or afford alternative treatment. How many patients across
America were told that they are not worthy to be parents because of
who they are and how many more would be at risk due to discrimination
based on religious grounds if that legal defense becomes protected by
law? Guadalupe Benitez’s case is a reproductive justice
battle that should remind us that there, but for the grace of legal
protection, go all of us.

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