ASRM Legally Speaking

California Court to Rule on MD's Refusal of DI Services to Single Woman
In a case garnering national attention, including front page coverage in USA Today and the involvement of more than 40 interest groups, the California Supreme Court has agreed to consider a lesbian mother's claim that her former doctors’ refusal to provide donor insemination services to her violated California's anti-discrimination laws. [LS Winter 2006]. The physicians claim the requested treatment would violate their fundamentalist Christian views, which they claim are constitutionally protected principles of religious freedom. The state's Supreme Court will decide the question of whether or not the doctors may raise that defense at the future trial.

After being refused donor insemination services, Guadalupe Benitez was referred to another, more expensive physician and ultimately underwent IVF, and gave birth first to a son and then to twin daughters. Benitez was an infertility patient of the defendant physicians for 11 months, and claims she was repeatedly promised, but ultimately denied, donor insemination treatment by the practice. The parties disagree over whether the denial was based on Benitez's non-marital status (as the doctors currently claim) or sexual orientation (as she claims). At the time (2000), California's anti-discrimination law, the Unruh Act, had been interpreted by courts to apply to sexual orientation, but had not yet addressed marital status. Since that time, the law has been extended to both, with notations in the legislative history to the amendment that it was intended to clarify, not alter, the law. Despite such language, the lower intermediate court found the 2000 version of the law did not protect against marital status.

The case has had a long procedural history. After being dismissed, it was reinstated by a trial court's ruling that private medical groups must comply with state civil rights laws. In 2005, an intermediate appeals court ruled that the statutory change was not retroactive and not simply clarifying, finding that discrimination on the basis of marital status at the time of the incidents violates the Unruh Act, and then ruled the doctors may raise their religious freedom claims with respect to sexual orientation. It is Benetiz's appeal of that ruling that will be heard by the California Supreme Court.

Multiple gay rights and civil rights groups, including the ACLU, have filed briefs in support of Benitez. More than a Legally Speaking dozen conservative religious organizations and legal groups have filed briefs in support of the physicians. The case is being watched closely, and its outcome will likely have a significant impact, if not a direct one, on patients and providers both within and beyond California. North Coast Women's Care Medical Group, Inc. v. Sup.Ct. (Benitez), 134 Cal.App.4th 712 (Cal.Ct.App.2005); app. pending.

NY Court Finds Two Posthumously Conceived Children Entitled to Inherit
In a case of first impression in that state, a New York court has ruled that two children born to their widowed mother from her deceased husband's sperm legally are considered his children and as such, are entitled to inherit from their grandfather's estate. What makes the case particularly unusual were that the children were born several years after both the deaths of their biological father and grandfather and that the sperm was left to the man's widow, simply with instructions to do with it what she saw fit.

The seven trusts were created in 1969 and directed funds be distributed to the grandfather's “issue” and “descendants”. The trustees sought direction from the court, which found that although the facts could not have been contemplated at the time of the trusts, it was clear that the grandfather wanted his sons and their families to inherit equally, and therefore, "a sympathetic reading…warrants the conclusion that the Grantor intended all members of his bloodline to receive their share."

Somewhat paradoxically, New York recently amended its laws on wills to exclude "post-conceived" children from a parent's estate unless there was a specific provision in that individual's will. The court noted that not only was the new law expressly limited to parent-to-child wills, but also involved different issues such as when a class of beneficiaries is defined for purposes of probating an estate (raised by deciding whether a deceased was a parent of the after-born child) rather than distributing it as was the case here. Former Governor Mario Cuomo, the guardian ad litem for the children, has applauded the decision and suggested it should help the legislature in addressing these issues legislatively. In the Matter of Martin B, 2007 NY Slip Op 27306, 2007 NY Misx. LEXIS 5164 7/30/07)

Rhode Island Governor Vetoes Extension of Infertility Insurance to Unmarried Women
As the California Supreme Court prepares to consider whether doctors may deny services to women based on their marital status or sexual orientation, Rhode Island's governor vetoed legislation that would have extended that state's required infertility insurance coverage to unmarried women. The governor issued a statement that, "[a]s a matter of public policy, the state should be encouraging the birth of children to two-parent families, not the reverse. By removing the marriage requirement, the legislation forces health insurance companies to subsidize out-of-wedlock births….[a]ny further tinkering with this benefit is unnecessary and unwarranted, and allows for even further creeping of cost in our healthcare system." Vernon-Sparks, Providence Journal (7/20)

Missouri Stem Cell Amendment Runs Into Obstacles Over Defining "Cloning"
Proving that passing laws or constitutional amendments alone does not ensure changes on the ground, Missouri is finding that its stem cell amendment is meeting with continued resistance and resulting setbacks in embryonic stem cell research efforts there. The issue is turning on a debate over the meaning of "human cloning", which is banned under the provision which makes legal under state law any research or treatment allowed under federal law (but does not fund any such research). Opponents argue that the amendment's definition, which requires a resulting pregnancy, is too narrow, and that “geography” -- whether the cells are placed in a uterus or not, should not be determinative. Opponents have introduced bills to bar some forms of the research; there is talk of another ballot initiative; and plans to expand prominent research facilities in the state are currently suspended, all suggesting that efforts to ensure support for embryonic stem cell research remains a challenging goal. NYTimes (8/10/07)

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