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Calif. court hears gay fertility case
Updated: 2005-10-12 10:20

A California appeals court heard arguments Tuesday in the case of a woman who sued her doctors after they refused to artificially inseminate her, allegedly because she is gay.

The physicians are appealing a ruling that prevented them from raising religious freedom as a defense in the test of whether doctors can deny treatment to gays and lesbians.

Attorney Carlo Coppo told California's Fourth District Court of Appeal that religion is relevant to deciding whether his clients wrongly denied fertility treatment to Guadalupe Benitez.

Drs. Christine Brody and Douglas Fenton should be allowed to explain "what went through their hearts and minds when they did what they did," Coppo told the three-judge panel.

One of the judges said the case is destined for the U.S. Supreme Court.

Benitez, 33, sued the doctors and their small practice in Vista in 2001, claiming their actions violated California's anti-discrimination laws.

Benitez was eventually treated elsewhere and gave birth to a boy who is now 3 years old.

In her suit, Benitez claims that Brody told her in 1999 that her religious beliefs prevented her from helping a homosexual conceive a child by artificial insemination, but that other physicians at the practice would be able to help her.

The next year, Benitez said, she was told that both Brody and Fenton were unable to help her because they did not feel comfortable with her sexual orientation.

The doctors contend they denied treatment because Benitez and her registered domestic partner of 15 years were not married. But Benitez's attorneys say she was denied because of her sexual orientation, not her marital status.

The case appears to be the first in the country in which a gay or lesbian patient was allowed to sue doctors over charges that treatment was denied based on sexual orientation, said Benitez's attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund.

Pizer argued that California civil rights law should have prevented the doctors from refusing treatment based on her client's sexual orientation.

"The state has a compelling interest to eradicate invidious discrimination," she told the court.

A Superior Court judge dismissed the case in 2001 on grounds that federal rules covering employer health plans bar state civil rights actions. In 2003, the San Diego appeals court overturned the decision.

When the case returned to Superior Court, Judge Ronald Prager ruled before trial that the doctors could not use religious freedom as a defense because there is no such exemption under the state's anti-discrimination law, setting the stage for Tuesday's arguments.

Justice Gilbert Nares predicted a long road ahead.

"As we all know, this is going to the U.S. Supreme Court," he said. "It's just a question of when."

The appeals court has 90 days to rule.

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