ASRM Legally Speaking

Physicians' Religious Objection to Treating Lesbian Under Further Review…

A California appellate court has now ruled twice on two physicians’ refusal to perform artificial insemination on an unmarried, lesbian patient, without resolving the legal issue. The physicians claimed their refusal to treat was based on religious objections to treating unmarried women and does not violate California’s anti-discrimination law, known as the Unruh Act. The patient, Guadalupe Benitez, had sought to have artificial insemination to have a child with her partner of 15 years and, when the physicians refused to treat her, sued claiming a violation of her civil rights. The trial court ruled against the doctors on the grounds that the anti-discrimination law does not state such an exemption. That ruling was initially reversed on appeal, with the court ruling that the doctors presented a factual issue as to whether their refusal to treat was based on marital status or sexual orientation, the latter being clearly protected by the law. Benitez’s attorneys, from Lambda Legal Defense, prevailed in having the appellate court vacate its opinion, grant a rehearing, and allow additional briefing, including “friend-of-the-court” briefs on both sides by multiple professional and civil rights organizations.
Benitez v. North Coast Women’s Care Med. Group, rehearing granted, North Coast Women’s Care Med. Group v. Sup. Ct., et al., 2005 Cal.App.LEXIS 2035 (12/30/05).

Arizona Court Denies Wrongful Death Claim for Lost Embryos…

Frozen embryos that were either lost or destroyed by the Mayo Clinic may not form the basis for a “wrongful death” suit according to a ruling by the Arizona Court of Appeals. A couple's missing five of 10 frozen embryos may give rise to legal claims for breach of contract, breach of fiduciary duty, or loss of irreplaceable property, but as days-old “pre-embryos”, the court ruled that they cannot be defined as a human person or viable fetus capable of life outside a womb. The case arose after a couple had their frozen embryos moved from the Mayo Clinic to the Arizona Centre for Fertility Studies after two unsuccessful transfer attempts at the first program. They achieved a pregnancy and birth, but on their second attempt reportedly discovered that five of their remaining 10 frozen embryos were not in the straws that had been shipped between the two clinics. Their suit was initially denied by a lower court in its entirety but the appellate court reinstated all but the wrongful death claim. The court ruled that any redefinition of personhood or when life begins was a function for the legislature, and added that it was speculative whether a child would have been born absent the loss. The court opinion echoed that of other appellate courts by defining ‘preembryos’ as occupying an “interim category between mere human tissue and persons because of their potential to become persons’.
Jeter v. Mayo Clinic Arizona, 10/27/05, www.cofad1.state.az.us/opinionfiles/CV/CV040048.pdf

Virginia and Texas Same-Sex Birth Certificate Controversies...

As non-traditional ART and adoption arrangements continue to proliferate, two states have come to different conclusions as to whether to recognize out-of-state adoptions by same-sex couples. In Texas, based on a statute explicitly prohibiting its Vital Records department from issuing birth certificates, except to a female and male parent, that state has refused to issue a birth record for a child adopted in Oregon notwithstanding the Oregon decree ordering a new birth certificate to issue. In Virginia, three test cases ended up in that state’s Supreme Court with a ruling that the out-of-state adoption decrees must be honored and new birth certificates issued. Most recently, in January, Virginia's Division of Vital Records agreed to issue a new birth certificate of one of those couples listing them as “Parent 1” and “Parent 2”, instead of “mother” and “father”.
TX. Health & Safety Code Sec.192.008 (2005); Davenport, et.al. v. Little-Bowser, et.al. Cir.Ct. No. 041180 (VA 4/05)

Gestational Carrier Loses Temporary Custody of Own Children…

The estranged husband of a gestational carrier has gained temporary custody of their two children, ages 7 and 2, and a Kentucky court has denied both her attempt to regain joint custody or to have a custody evaluation of both of them, as well as her request to have another judge appointed to decide the case. A permanent custody decision, originally scheduled for January 2006, has been postponed indefinitely. Jack Bendschneider filed for divorce and took temporary custody of the children because, he told a local newspaper, a surrogacy arrangement his wife, Arletta Bendschneider, entered into with author Jaquelyn Mitchard and her husband had, “consumed his wife to the detriment of her own children.” The children are reportedly being cared for by Jack Bendschneider
and his parents, who have moved into the family's home. Bendschneider also refused to sign the Massachusetts court documents to denying his parental rights of the child his wife was carrying, and under Kentucky law was presumed to be the legal father of any child born to his wife. The baby boy was born on November 1, 2005, and is with Mitchard and her husband. A determination of legal parentage was delayed because of Bendschneider’s refusal to consent, but ultimately issued.
Lexington Herald-Leader, KY (12/16/05); Advocate-Messenger (Edwards, 1/11/06; 1/19/06)

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