Lesbian Sues Over Physician’s Refusal to Do Insemination

Eager to start a family, Lupita Benitez asked her doctor to help her conceive a child through artificial insemination. Benitez thought her request was routine -- just another of many from women who face infertility and seek medical help to get pregnant.

But Benitez’s doctor, Christine Z. Brody, refused to perform the procedure. Her reason: Benitez is a lesbian, and Brody said it was against her Christian beliefs to help a homosexual become pregnant.

After that 1999 appointment in her doctor’s office in the San Diego suburb of Vista, Benitez filed a civil rights lawsuit against Brody and the doctor’s medical group. The trial court initially dismissed the lawsuit. Now the matter is before the 4th District California Court of Appeal in San Diego.

The case has thrown into confrontation a young woman’s claim that she is entitled to be treated equally regardless of her sexual orientation against a doctor’s insistence that she should not be forced to provide medical services that conflict with her religious beliefs.

Brody and her medical colleagues won an initial round in court on a technical issue.

Civil Rights Issue

Lawyers for Benitez say she is entitled to equal treatment under the law, just like any citizen; in other words, her lesbianism should not block her from receiving artificial insemination. The lawsuit filed by Benitez against Brody and her medical group contends that doctors, just like other professionals and businesses, are subject to California law that bars discrimination against gays.

A state appellate court is expected to rule within weeks whether to uphold the lower court ruling or, instead, to allow the suit to move ahead and send it back to a lower court for trial.

“Health-care professionals, including doctors, need to understand civil rights laws apply to them,” said Jennifer C. Pizer, a lawyer with the Lambda Legal Defense and Education Fund who is assisting Benitez. Pizer said a doctor’s care is a “public accommodation” under the law, which must be accessible to all just like the lunch counters of the South that were finally opened to African Americans.

Claim Called Baseless

Carlo Coppo, an attorney representing Brody, her medical partner Dr. Douglas K. Fenton, their medical group and Benitez’s health plan, called Benitez’s claim baseless.

Citing rules of patient confidentiality, Coppo said the physicians could not comment on the specifics of Benitez’s case. But he agreed that the doctors declined to perform the artificial insemination and instead referred Benitez to another doctor.

Benitez, 31, saw another doctor. She later became pregnant and is now the mother of a 1-year-old boy. She said she filed the lawsuit because “I don’t want anyone else to go through what I went through. Everybody should be treated equally.”

When Benitez first saw her doctor in August 1999, Brody’s North Coast Women’s Care Medical Group was the only provider of obstetrics and gynecology services for Benitez’s health plan. Joining Benitez at the appointment was Joanne Clark, then her partner of eight years.

During the visit, Benitez said she mentioned to the doctor that she was a lesbian. Brody informed Benitez that she would help her with fertility treatments and could treat her after she became pregnant, but the obstetrician said her religious beliefs would keep her from performing artificial insemination on a homosexual. Brody said another doctor in the group would be able to handle the procedure.

Clark, who sat next to Benitez that day in the doctor’s office, said that although the exchange was civil, she sensed that Benitez was angry, and thinks the doctor also sensed she had upset her patient. Brody “told us she had many gay friends and said gays made some of the best parents,” Clark recalled. “I truly believe she saw the anger in Lupita and was trying to calm the situation down.”

Benitez said the doctor’s remarks upset her, “but I appreciated her honesty.” As long as she could get the care she required, Benitez said, she would tolerate the obstetrician’s approach. Besides, Benitez said, she did not feel she had much choice, since Brody’s medical group was the only one authorized by her health plan.

Court documents say Benitez saw the obstetrician for 11 months, receiving drug and hormone therapies as she tried to inseminate herself at home with sperm from a sperm bank. In April 2000, Dr. Brody performed diagnostic surgery on Benitez to determine her suitability for artificial insemination.

Ultimate Refusal

Benitez and the obstetrician arranged on July 5 for an intrauterine artificial insemination, which must be performed by a doctor, at the North Coast medical group, the lawsuit alleges. The suit states that on July 7, Brody’s colleague, Douglas K. Fenton, telephoned Benitez and told her that because of the feelings of Brody and other staff at the medical office about Benitez’s lesbianism, she could not be treated at the office.

Though she had tolerated Brody’s earlier objections to her artificial insemination, Benitez said the doctor’s ultimate refusal stunned her. “I was just shocked,” said Benitez, who works as a medical assistant in a building next door to Brody’s office. “I never thought there would be that kind of discrimination in the medical field.”

Benitez reported the incident to the California Department of Fair Employment and Housing. She filed her civil rights lawsuit in July 2001. Coppo, the attorney for the doctors, said Benitez was referred to another doctor at no charge.

Benitez’s lawyers contend that she saw another doctor only after seeking assistance from her health plan’s primary-care doctor, who referred her to a physician out of the health plan’s network. Albert Gross, one of Benitez’s attorneys, said his client had to pay thousands of dollars in extra fees for an out-of-network doctor, and she was reimbursed only after suing the health plan.

Pizer, the Lambda Legal Defense and Education Fund lawyer assisting Benitez, said that, even if her doctor arranged for her to see another physician, such behavior is still illegal. She compared it to “a lunch counter in the segregated South saying, ‘We don’t serve you here, but they’ll serve your kind across the street.’ It’s humiliating, destructive to our society and unlawful.”

Benitez’s doctors argued in court filings that their actions fell under the Constitution’s religious freedom protections.

Pizer contends that California law makes it clear that business establishments, including medical practices, cannot turn people away because of their sexual orientation. “When the doctors were practicing medicine, they were not engaged in religious worship,” she said.

Society must balance equal protection for minorities while securing the liberty of religious groups, Pizer said. “Those needs have to be balanced,” she said, since “everyone needs access to good health care while at the same time civil rights laws have no place in people’s churches.”

Lessons for Son

Meanwhile, as Benitez awaits the outcome, she hopes her struggle will someday yield lessons for her son, whose name she and Clark would not reveal for safety reasons. “We’re going to teach him everybody’s equal,” Benitez said. “He can follow his own judgment, whether he wants to become a Christian, a Catholic, whatever.”