Saturday, July 30, 2005

Do Lesbians Have a Right to Fertility Treatment?

I spent some time mulling over the legal and moral issues bound up in this story from the San Francisco Chronicle ("When Rights Collide: Doctor and Patient Both Say Their Liberty was Violated).

A Southern California lesbian who sued her doctors for discrimination after they refused to artificially inseminate her is now fighting both them and the state's largest medical association over whether doctors should have the right to refuse treatment on religious grounds.

There are a lot of interesting and debate worthy issues here:

(1) Can physicians refuse to offer services to patients because they find a patient's lifestyle to be immoral?

The California Medical Association has taken the position that, in addition to being able to choose which procedures they perform, doctors should in some situations be able to choose whom they treat.

(2) Is refusal to treat or offer services to a lesbian a violation of civil rights? Is this discrimination, and therefore a violation of state laws?

"If the position that's being promoted by the California Medical Association and the physicians in the case carries the day, then we've blown a hole in civil rights protections in the state of California," said Joel Ginsberg, executive director of the San Francisco-based Gay and Lesbian Medical Association, one of the 16 groups that filed a brief in Benitez's case. Ginsberg offered the hypothetical examples of an Orthodox Jewish restaurant owner who refuses to allow men and women to sit together or a Muslim shop owner barring women who do not wear head coverings."

(3) Can physicians deny fertility treatment to mothers who they find unfit for parenting?

A medical association spokesman said the group is taking a narrow position that applies only to the circumstances of this case. Spokesman Peter Warren said the doctors did not refuse Benitez treatment based on her sexual orientation but on her marital status.

(4) Should the law (state/federal) forbid physicians from denying services to patients object to on moral grounds (this is similar to the bill being considered in the Small Business Committee in the House, concerning whether pharmacists must fill birth control prescriptions--The Freedom of Conscience for Small Pharmacies.)

(5) Does "freedom of religion" (or this concept "freedom of conscience") mean that state laws forbidding discrimination don't apply to religious physicians?

"Whatever the motive was, whether marital status or sexual orientation, it's an issue of whether religion gives people a free pass to ignore laws that apply to everybody else," said Jennifer Pizer, senior attorney for the Western regional office of the Lambda Legal Defense and Education Fund, an organization that specializes in gay and lesbian legal issues. "Any type of discrimination that today is illegal, it would be open season on any of those because religious freedom deems it not discrimination anymore."

(6) What are the unintended consequences of legislation that forbids physicians to deny services to a patient they find morally reprehensible?

These are just a FEW of the questions arising from this case, about to face the Fourth District Court of Appeal in San Diego.


When examining a case like this, I think its useful to first consider the "moral question" distinctly from the "legal question." The legal questions will have to confront (6) far more than moral reasoning about this situation would. The moral question is (as the title of the article says) a clash or rights: right to religious freedom vs. right to equal treatment.

(A) Can a physician deny fertility treatment to a lesbian because he/she thinks the lesbian's "lifestyle" (or her very being) is immoral?

(B) If we tease this out further, we have another question: if my religion teaches that homosexuality is immoral, then why do I have to obey laws that require me to treat homsexuals?

How you answer B affects your answer to A. While I won't answer the question (because I am in socratic mode today), I do think its worth asking more questions:

What constitutes a religion?
Which religious people should be exempted from certain civil rights laws: Wiccans? Buddhists? Unitarians? Wahabis? Jainists? Lutherans? Civil War Reenactors?
What count as religious teachings: What your religious leader says? What your founding texts say? What the tea leaves said?


Now to be fair, let's consider all the issues bound up with the right to equal treatment.

What consitutes discrimination in physician-patient relationships?

(C) If a young, married Chinese woman, who suffers from low self-esteem, seeks out fertility treatment to get pregnant because having a baby would make her feel loved, is a physician obligated to give it to her?

(D) If a Mormon woman--one of many brides--asks for fertility treatment because she notices that the other wives get better treatment because they are pregnant, does a doctor have to perform the services.

(E) If a single woman wants fertility treatment to get pregnant, can a doctor deny her treatment because he believes that only traditional families are stable to raise children?

If you are still working through this puzzle with me, it seems that we need to decide if (A) is equivalent to (C), (D) and (E). And, what is relevant here is what the motivation is for denying treatment. If a physician denies fertility treatment to (C) because she is a Chinese woman or (D) because she is a Mormon, then we it seems looking at cases of unequal treatment.

So, to consider the particular case of Guadalupe Benitez, we need to consider why she was denied treatment: was it because she was a lesbian, latina or not well suited to raise children. Why the physician denied treatment is crucial to determining how moral his/her decision was.

For the sake of argument (and because it seems to what happened), let's assume that the physician denied Guadalupe services because she is a lesbian. And, our physician reasoned that her religion teaches that lesbians are perverts and hence unfit to raise children. Does the physician have a right to refuse treatment? Does the physician's right to "freedom of conscience" trump Guadalupe's right to equal treatment?

Let's hear what you think?!

[Side note: Is there a constitutional "right" to "freedom of conscience"?]