Metropolitan News-Enterprise


Thursday, June 15, 2006


Page 1


State Supreme Court Agrees to Hear Lesbian Insemination Case


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether doctors had a legal right to refuse to perform artificial insemination on a lesbian.

By a vote of 5-2, the court granted Guadalupe “Lupita” Benitez’s petition for review of the Fourth District Court of Appeal’s March 14 ruling in Benitez v. Superior Court (North Coast Women’s Care Medical Group), D045438.

Benitez claims that two physicians at North Coast Women’s Care Medical Group discriminated against her on the basis of sexual orientation and/or marital status in violation of the Unruh Civil Rights Act. The act prohibits businesses from practicing invidious discrimination, and the listing of certain categories of prohibited discrimination, including race and religion, has been held not to preclude application of the law to other types of bias.

Legislation enacted last year, long after the events involved in Benitez’s suit took place, added sexual orientation and marital status to the types of discrimination expressly prohibited. Prior Court of Appeal decisions had applied the act to sexual orientation bias, but not to discrimination based on marital status.

In Benitez’s case, the Court of Appeal’s Div. One ruled that discrimination on the grounds of marital status did not violate the Unruh Act at the time of the events in question; that a triable issue existed as to whether the doctors refused to perform intrauterine insemination on Benitez because she was a lesbian or because she was unmarried, and that the doctors may introduce evidence of their religious and moral beliefs in order to prove that they would not have performed the procedure on any unmarried woman.

The court also held that last year’s California Supreme Court ruling allowing a same-sex couple to sue because they were denied family privileges at a country club has no application to the case. That decision was based on the current version of the Domestic Partner Act, which requires that registered domestic partners be given many of the same rights as married couples, but Div. One declined to apply it because the current domestic partner law was enacted after Benitez sued.

North Coast, located in Vista, was, at the time Benitez went there, the sole provider of obstetric and gynecological services in Northern San Diego County for members of Benitez’s employee health plan.

Benitez alleged in her complaint that she had been through 11 months of infertility treatments at North Coast, and was preparing to undergo artificial insemination there. She said she told her doctor, Christine Z. Brody, that she was a lesbian.

Brody, according to the complaint, told Benitez she was willing to continue overseeing her treatments, but would not perform the insemination procedure because she had a religious objection to impregnating a lesbian.

Benitez alleged that she agreed to this arrangement, although she was upset by it, but that when the time to perform the procedure approached, she was told that no one at North Coast would do it. She was eventually referred to an out-of-plan physician, she said, at a cost of several thousand dollars.

The insemination procedure was unsuccessful. Benitez later had a child through in vitro fertilization.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar, Carol Corrigan, and Carlos Moreno voted to hear the case; Justices Ming Chin and Marvin Baxter voted against.

The case drew amicus briefs from a host of organizations. Among those supporting Benitez, who was represented by Lamda Legal, were the Anti-Defamation League, the Asian Pacific American Legal Center of Southern California, the California Women’s Law Center; the Gay and Lesbian Medical Association; and the Mexican American Legal Defense and Educational Fund.

The doctors were represented by the Alliance Defense Fund and Advocates for Faith and Freedom, and were supported by the Christian Medical and Dental Association and Human Life International as amici. The California Medical Association originally filed an amicus brief arguing that the physicians should not be subject to liability if they would not have been held liable under the law as it existed at the time they were treating the patient, but later said that its position had been publicly misconstrued and abandoned it.

A CMA attorney told the MetNews at the time that the association acted so as to dispel suggestions that it had abandoned its long-held opposition to discrimination based on sexual orientation.

The court yesterday also agreed to review a ruling by the Third District Court of Appeal applying the absolute litigation privilege afforded by Civil Code Sec. 47(b) to actions based on the state constitutional right to privacy.

The justices unanimously voted to consider the case, in which the Court of Appeal overturned a $30,000 jury verdict against Shasta County, obtained by a man accused of having molested his 5-year-old nephew in 1993, when the alleged molester was 15. The Third District panel acknowledged a direct conflict between its ruling and two First District decisions holding that the Sec. 47(b) privilege must be balanced against the interest protected by the constitutional provision.

Evidence of the alleged molestation was contained in records maintained by the Shasta County Victim Witness Program and became part of a court dispute over visitation in neighboring Tehama County. No charges were ever filed against the uncle, but the alleged victim’s parents successfully applied for benefits from the Witness Program, which made a finding based on a preponderance of the evidence that the molestation had occurred.

The alleged victim’s mother later divorced the child’s father—the brother of the alleged perpetrator—and remarried.

The mother, fearing that the court in Tehama County would allow contact between her son and his uncle, approached Witness Program officials in 2003, seeking documentation of the abuse allegation. A supervisor wrote a letter for her stating that the molestation had been “established.”

When he provided the letter, the supervisor was unaware that the child’s uncle had been a minor at the time of the alleged molestation. The mother passed the letter on to her husband, who attached it to a declaration opposing changes in visitation and filed it in Tehama Superior Court. When the uncle learned of the letter, he sued Shasta County and the Witness Program supervisor who wrote the letter.

Justice M. Kathleen Butz, writing for the Court of Appeal, said that because the letter was written for use in litigation, it was absolutely privileged with respect to any cause of action other than for malicious prosecution.

The case is Jacob B. v. County of Shasta, C049794.


Copyright 2006, Metropolitan News Company