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Appeals court hears case of lesbian denied fertility treatment
SAN DIEGO – A California appeals court heard arguments Tuesday in the case of a lesbian who sued her doctors after they refused to artificially inseminate her – a case that one of the judges said was headed for the U.S. Supreme Court.
Drs. Christine Brody and Douglas Fenton are appealing a state Superior Court ruling that prevented them from raising religious freedom as a defense in one of the first cases in the country to test whether doctors can deny treatment to gays and lesbians.
During one hour of arguments, attorney Carlo Coppo told California’s Fourth District Court of Appeal that religion was relevant to deciding whether his clients wrongly denied fertility treatment to Guadalupe Benitez in 1999 and 2000.
The doctors should be allowed to explain “what went through their hearts and minds when they did what they did,” Coppo told the three-judge panel.
“My clients – Drs. Fenton and Brody – are hoping to tell their story at trial,” he told reporters outside court.
Benitez, 33, sued the doctors and their small practice – North Coast Women’s Care Medical Group in Vista, north of San Diego – in 2001, claiming their actions violated California’s anti-discrimination laws.
The Oceanside woman was eventually treated elsewhere and gave birth to a boy who is now 3 years old.
In her lawsuit, Benitez claims that Brody told her at the start of her treatment in 1999 that her religious beliefs prevented her from helping a homosexual conceive a child by artificial insemination, but Brody allegedly told Benitez that other physicians at the practice would be able to help her. In July 2000, Benitez said she was told that both Brody and Fenton were unable to help her because they did not feel comfortable with her sexual orientation.
The doctors contend they denied treatment because Benitez and her registered domestic partner of 15 years, Joanne Clark, were not married. But Benitez’s attorneys say she was denied because of her sexual orientation, not her marital status.
The case appears to be the first in the country in which a gay or lesbian patient was allowed to sue doctors over charges that treatment was denied based on sexual orientation, said Benitez’s attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund.
The California Medical Association initially backed the two doctors, but changed its position last month after coming under fire from gay rights groups.
Pizer argued that California’s Unruh Civil Rights Act should have prevented the doctors from refusing treatment based on her client’s sexual orientation. Under intense questioning, Pizer likened the doctors’ denial to a waiter at a Kosher restaurant who only serves Jewish customers.
“The state has a compelling interest to eradicate invidious discrimination,” she told the court.
California is one of 17 states that have laws protecting gays and lesbians from discrimination, according to Lambda Legal.
A Superior Court judge dismissed the case in 2001 on grounds that federal rules covering employer health plans bar state civil rights actions. In 2003, the San Diego appeals court overturned the decision.
When the case returned to Superior Court, Judge Ronald Prager ruled before trial that the doctors could not use religious freedom as a defense because there is no such exemption under the state’s anti-discrimination law, setting the stage for Tuesday’s arguments.
Justice Gilbert Nares predicted a long road ahead.
“As we all know, this is going to the U.S. Supreme Court,” he said. “It’s just a question of when.”
The appeals court has 90 days to issue a ruling.
Benitez gave birth again in August to twin girls, using frozen embryos from the same donor as her son.
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