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California court to hear lesbian insemination case

By LISA LEFF, Associated Press

SAN FRANCISCO -- Guadalupe Benitez claims that after being treated with fertility drugs for nearly a year, her Christian doctors refused to inseminate her because she is a lesbian.

She sued and a San Diego County trial judge sided with her. But an appeals court reversed the ruling, and her lawsuit is scheduled to be heard by the California Supreme Court this week.

The case is closely being watched by civil rights and physician groups who think it could have consequences for other medical procedures, including abortion and end-of-life decisions.

"There is confusion among many health care providers who believe doctors have the freedom to pick and choose their patients," said Jennifer Pizer, an attorney with the gay rights legal group Lambda Legal who represents Benitez. "But doctors' ethics may not be exercised in a discriminatory way."

Benitez, now the mother of a 6-year-old boy and 2-year-old twin girls, sued Vista-based North Coast Women's Care Medical Group under a state law that prohibits for-profit businesses from arbitrarily discriminating against clients based on characteristics such as race, age and sexual orientation.

The appeals court noted that at the time Benitez sought treatment, California civil rights law still allowed businesses to restrict their clientele based on a customer's marital status and Benitez's doctors claimed the main reason they would not treat her was because she was unmarried.

Attorney Robert Tyler, who is representing the two North Coast doctors, said Benitez' claim that the physicians had a duty to inseminate her would be more convincing if the disputed procedure were a lifesaving measure instead of an elective one.

Tyler said the doctors acted compassionately and ethically, referring Benitez to the fertility specialist who succeeded in helping her get pregnant and offering to pay the extra costs.

"Here, the doctors are being asked to create life. Why shouldn't they be allowed to let their faith be an important part of their decision-making as it relates to either choosing to perform a procedure or referring the person to another physician who is willing to perform the procedure?" he said.

Peter Ferrara, general counsel for the Virginia-based American Civil Rights Union, said regardless of what the doctor's reasons were for refusing to inseminate her, a ruling in Benitez' favor would set a dangerous precedent.

"If you have a genuine moral issue raised, as in this case, you have to recognize the rights of both parties," said Ferrara, who filed a friend-of-the-court brief supporting the doctors.

Requiring them to act in violation of their beliefs "is a discriminatory resolution, and it discriminates against Christians," he said.

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

The doctors are backed by the Islamic Medical Association of North America, the Christian Medical & Dental Associations, the California Catholic Conference, the American Association of Pro Life Obstetricians & Gynecologists and Americans United for Life.

The California Medical Association initially sided with the doctors but reversed its position after coming under fire from gay rights groups.

Benitez, 36, said she and her partner decided to pursue the case because they wanted to prevent other couples from suffering the disappointment and humiliation they did.

"Even now I still have reservations when I go to a new doctor," she said. "The first question we ask each other is, 'Do you think they will have an issue and not take into consideration at all that we are a normal family like anyone?'"

Pizer said that while doctors can opt out of performing certain procedures on religious grounds, they cannot exclude medically eligible patients from the services they do provide.

"If a doctor in good conscience can't provide good medical care, that doctor should not be in that field," she said. "If a person isn't willing to provide the care the person needs, they shouldn't be wearing the lab coat."

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