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Refusal to artificially inseminate 'unmarried' lesbian.

AT ONE TIME, HEALTH CARE PROVIDERS COULD NOT BE MADE TO PARTICIPATE IN PROCEDURES CONTRARY TO THEIR RELIGIOUS OR MORAL VALUES. Their right to refuse to participate in procedures contrary to their religious or moral values has been challenged. Physicians in this California case became embroiled in a lawsuit when they refused to participate in the artificial insemination (IUI) of a lesbian patient who insisted that they participate in her being artificially inseminated. Because their policy was not to inseminate unmarried women they and other defendants were deemed not to have acted in violation of the California law in effect at the time. Had they refused to participate in the IUI because the patient was a lesbian, would their right not to participate have been recognized?

IN AUGUST OF 1999, GUADALUPE BENITEZ, A LESBIAN, BEGAN TREATMENT FOR IUI WITH DR. CHRISTINE BRODY OF THE NORTH COAST WOMEN'S CARE MEDICAL GROUP, INC., (GROUP). She informed Dr. Brody of her sexual orientation. Dr. Brody maintained that she told the patient that if the patient's treatment reached the point where IUI was the next step, she would not perform the procedure because it was against her religious beliefs. The patient maintained that Dr. Brody stated that it was against her religious beliefs to perform IUI for a lesbian. Dr. Brody maintained that she told the patient that it was against her religious beliefs to perform an IUI for any unmarried woman, regardless of sexual orientation. Dr. Brody told the patient that Dr. Douglas Fenton, another physician employed by the Group, shared her religious beliefs about IUI. When the patient notified Dr. Brody that she wanted to use "fresh sperm" a friend agreed to donate, Drs. Brody and Fenton responded that "live non-spousal donor sperm" had never been used by the Group. The patient then told Dr. Brody she would undergo the procedure with frozen sperm. Dr. Brody dictated this to be entered in the patient's chart. Before the notes were recorded in the chart, the patient contacted Dr. Fenton who, unaware that the patient changed her mind, referred her to Dr. Michael Kettel, an outside OB-GYN for the IUI. After the patient gave birth, she sued Drs. Brody, Fenton and the Group for, inter alia, the additional costs incurred for Dr. Kettel's charges. The Superior Court granted the patient's motion for summary judgment. The defendants appealed.

THE COURT OF APPEAL OF CALIFORNIA REVERSED THE JUDGMENT FOR THE PLAINTIFF. The court held, inter alia, that there was a genuine issue of material fact as to whether Drs. Brody and Fenton refused to perform the IUI for the patient because she was unmarried and not because of her sexual orientation. The court noted that the testimony of the patient and her domestic partner, Joanne Clark, was that Dr. Brody told them her religious beliefs prohibited her from performing an IUI on any unmarried woman, regardless of whether the woman was heterosexual or homosexual. Clark testified that Dr. Brody's statements "implied marriage was the factor." The court emphasized that California's Unruh Act did not prohibit discrimination based on marital status at the time the patient's claim under the Act accrued. The Act, on its face, prohibited discrimination based on "sex, race, color, religion, ancestry, national origin, disability or medical condition." It had been extended (by case law) to include discrimination based on various other classifications, including sexual orientation. However, the court had previously ruled that the act did not extend to discrimination based on marital status. Accordingly, the court concluded that, for purposes oft his case, the Unruh Act prohibited discrimination based on sexual orientation but did not prohibi discrimination based on marital status. Editor's Note: After the facts in this case California state legislature amended the Act to include discrimination based on marital status. However, in this case, the court held that the amendment applied prospectively--not retrospectively!

THE RIGHT TO REFUSE TO PARTICIPATE IN A PROCEDURE CONTRARY TO ONE'S RELIGIOUS AND/OR MORAL VALUES IS IN PERIL. Nurses, as well as all other health care providers, should organize and make a concerted effort that they not be compelled to participate in procedures which are contrary to their religious and/or moral values. In this case, the health care providers were fortunate that the legislature had not yet amended state law to include discrimination based on marital status. Should one be made to participate in a proceudre contrary to his or her moral values? Should antidiscrimination laws encroach upon one's religious and/or moral values? North Coast Women's Care Medical Group, Inc., v. Superior Court of San Diego County, 2005 WL 3251789--CA
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Publication:Nursing Law's Regan Report
Geographic Code:1U9CA
Date:Dec 1, 2005
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