Bioethics Discussion Blog: Fertility Treatment of a Lesbian: Can A Physician Refuse?

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Monday, August 28, 2006

Fertility Treatment of a Lesbian: Can A Physician Refuse?

Here is the scenario:

In the United States of America it is accepted that all physicians have a right to choose their own patients except in the case of a medical emergency.

In the United States of America , no physician receiving government funding may discriminate against potential patients on the basis of race ,color, religion or national origin and in the state of X, the anti-discrimination laws include, as do some other states, gender and sexual orientation.

Miss K.. has gone to fertility doctor F, who is a Medicare provider, with her same sex partner Miss J. requesting that Doctor F. provides fertility treatment so that Miss K. can become pregnant by artificial insemination. Both Miss K. and Miss J. explain their desire to have a child.

Doctor F. has strong personal religious views against abortion (which he would never perform) and also about inducing a pregnancy in a homosexual. He rejects her request and subsequently Miss K. sues Dr. F. in X state court charging that under state X law, Dr. F.’s refusal to treat represented illegal discrimination on the basis of sexual orientation.

That’s the story. Now what is your ethical and legal interpretation of this scenario? . What if Dr. F. is also a general internist and has been treating Miss K as his patient. for various medical conditions over the past several years prior to her making the request?

(I want to acknowledge this thread was born out of an article “May Doctors Refuse Infertility Treatments to Gay Patients?” by Jacob M. Appel in the July-August 2006 issue of the Hastings Center Report.) ..Maurice.

21 Comments:

At Monday, August 28, 2006 9:05:00 PM, Anonymous Moof said...

Dr. Bernstein, while I would defend the rights of any human being to seek out whatever treatment they choose, I also would defend the right of any provider to refuse.

I'm not singling out gays, nor am I singling out physicians who would refuse to do something because of an ethical scruple ... any person ... any physician ... any reason ... although I would hope that the physician wouldn't refuse to treat someone in an emergency situation.

I don't understand why healthcare workers are expected to not have free will ... for the very purpose of fulfilling other people's druthers? Medical personnel should have every bit as much of a right to refuse to do something as anyone else does ...

A society that enforces special rights for some doesn't seem to realize that in order to do so, it has to squelch the natural rights of others.

Physicians seem to be in crosshairs with this sort of thing ... it's a bad place to be.

 
At Tuesday, August 29, 2006 7:12:00 AM, Anonymous bob koepp said...

Conscientious refusal to provide a service isn't supposed to hinge on the personal characteristics of the one seeking that service. If Dr F's only reason for refusing to provide AI is that Miss K is homosexual, then the good Dr has a problem.

On the other hand, if Dr F would not provide AI unless there was a bona fide medical condition that prevented normal insemination, and applied this rule regardless of the sexual orientation of the patient, I think the Dr would be on solid ground, ethically speaking.

 
At Tuesday, August 29, 2006 6:18:00 PM, Anonymous Jaine said...

I don’t agree with the decision to sue the doctor. This couple could easily find another doctor to provide the service. If the service couldn’t be found elsewhere then the problem would be far more complex. It would be a matter of whether a doctor, accepting public funding, has the right to break public law in the name of his individual religious beliefs, and in doing so stop a couple from having children. There is room in this case to respect both sides. By looking elsewhere for the service the couple would be respecting the doctor’s right to follow his religious beliefs and they too would have their needs met by finding a supportive doctor. A win/win. If the doctor provided service up to the point where the patient’s request caused a conflict, based on his religious beliefs, this would indicate his refusal to provide the service was not personal. It was based on his religion.

While home-schooling my children (not for religious reasons on any level) I dealt with a group of public employees who refused to implement a public policy because the policy increased their workload and they personally did not support the concept of home-schooling. I could have forced this group to comply because government and policy were on my side. However, instead I looked for an alternative outside that particular system. I found another group of public employees who were very enthusiastic about supporting a similar policy within their area. The result was a win/win for everyone.

 
At Tuesday, August 29, 2006 8:19:00 PM, Blogger Bardiac said...

I don't know current law well enough to know if Dr. F can be successfully sued or whatever.

His action strikes me as highly unethical, on par with refusing to provide AI to a woman based on her race, ethnicity, or religion.

I'm intrigued by the additional question about whether Dr. F had been treating Ms K. Are you implying that he knew she was a lesbian and was willing to provide medical care EXCEPT for artificial insemination? (He'll take her money as long as it's convenient?)

Or are you implying that he didn't realize until she brought in her partner that she was lesbian? (Which was what I first assumed when I read your scenario. A very few years ago, I was told by a professional that she'd never met a gay person.)

Moof says that "anyone else" has rights to refuse service. I disagree. People who work under non-discrimination laws in the US don't have any such right. I'm a teaching professional, and I don't (and shouldn't) have the right to refuse to teach a qualified student. A doctor who accepts government money (medicare in this scenario) has chosen to subject him/herself to non-discrimination laws.

What makes "natural" an appropriate category for ethical or legal behavior? (Murder is totally "natural," too, but not usually ethical or legal.)

Jaine mentions that there's room for respect on both sides in suggesting that Ms K shouldn't sue. I'm missing how Dr F shows any sort of respect in this case.

(I also want to make the point that the couple isn't necessarily suing for the money, but to make a legal point. Rosa Parks didn't sit up front on a whim, but to force the issue legally.)

Here's a question for Maurice: why did you title the women "Miss," a term that resonates with the historical dominance of men in marriage? Why not use the more common "Ms"?

 
At Tuesday, August 29, 2006 8:26:00 PM, Blogger Maurice Bernstein, M.D. said...

Bob, I don;t see that the doctor must appear to act out of one of two rationales regardless of his own religious views of pregnancy in a lesbian. Most likely Miss K. is normally fertile and that the process involved in artificial insemination would not be necessary as a medical procedure if she would allow herself to have been impregnated in the usual way. Because of Miss K.'s personal sexual preferences, she has rejected the normal way a woman is impregnated. Dr. F. is under no medical obligation to provide a service to satisfy this patient's request as a lesbian just as he wouldn't be obliged to provide the same service to another normally fertile patient who was heterosexual. (Might this be analogous to a non-therapeutic cosmetic procedure?) The lack of medical necessity for the procedure would ethically and legally trump any view (for or against) Dr. F. held about homosexuals. It was Miss K. who brought her homosexuality to the fore by making a medically unnecessary request. I would therefore defend the doctor on this medical ground. Now if Miss K. had a pathophysiological condition which would prevent her from becoming pregnant by normal impregnation.. well, that would be another matter.

I really like Jaine's approach to the conflict. It is more rational and thoughtful regarding the rights of all persona than turning around and sueing. ..Maurice.

 
At Tuesday, August 29, 2006 9:25:00 PM, Blogger Maurice Bernstein, M.D. said...

Bardiac, apparently I didn't see your posting when I wrote the one above. Don't you think that the argument that I made to Bob Koepp's comment could ethically and legally defend any presumed bias that Dr. F. might hold regarding homosexuals?

What I wanted to bring out in the modification of the scenario with Dr. F. having a long standing therapeutic doctor-patient relationship with Miss K. before her request would eliminate any argument, if he was already aware that Miss K. was a lesbian, that he acted out of a standard of medical practice and not out of her sexual preferences. If he wasn't aware..he should have been. Well, as I tell my med students, when they are doing a general medical exam or specific GU exam they should ask the patient if the patient prefers "sex with men, women or both". It is standard operating procedure.

With regard to Miss or Ms., I guess it is because I am old and I am not up to date regarding this social norm. I didn't realize that Ms still is the proper courtesy title for a woman. The following is from Answers.com:

USAGE NOTE Many of us think of Ms. or Ms as a fairly recent invention of the women's movement, but in fact the term was first suggested as a convenience to writers of business letters by such publications as the Bulletin of the American Business Writing Association (1951) and The Simplified Letter, issued by the National Office Management Association (1952). Ms. is now widely used in both professional and social contexts. As a courtesy title Ms. serves exactly the same function that Mr. does for men, and like Mr. it may be used with a last name alone or with a full name. Furthermore, Ms. is correct regardless of a woman's marital status, thus relegating that information to the realm of private life, where many feel it belongs anyway. Some women prefer Miss or Mrs., however, and courtesy requires that their wishes be respected.


..Maurice.

 
At Tuesday, August 29, 2006 11:53:00 PM, Blogger Bardiac said...

Maurice, thanks for your response.

Hmmm. Isn't all fertility treatment and artificial insemination strictly speaking "medically unnecessary"?

But if Dr F is performing artificial insemination as part of his practice, and it's illegal where he practices to discriminate against people based on sexual preference/orientation, then he shouldn't discriminate based on sexual preference/orientation. It's not only illegal, it's unethical.

Let's posit a parallel scenario: If a straight, fertile woman whose partner couldn't impregnate her in the "normal" way asked for artificial insemination, would Dr F refuse? Would he suggest she have sex with another male in order to get pregnant?

Ms K's partner can't get her pregnant, either. Why should Ms K be treated differently from the straight woman whose male partner can't get her pregnant?

(If Dr F refuses AI in all cases of male partner infertility, then there's no problem. But that doesn't sound like much of a fertility practice, does it?)

As for whether Dr F knew her preference/orientation: if he knew before and feels that it's appropriate to discriminate against queers, then he should tell her so she can find another provider. He should also tell every patient (even if they're married and he thinks they're straight), so they can find another provider if appropriate. And he should stop accepting any government money.

Because if he thinks it's ethical to discriminate against queers, he should be unashamed for his attitude to be known.

You may ask every patient about sexual practices, and so may your students. But I bet not every doctor does, and further that not every patient feels safe enough to come out even if asked.

I mean, we're blog-discussing whether it's appropriate for physicians to discriminate against queers, and you, a physician, are arguing that discrimination is ethical.

If other physicians share your opinion, then it's not necessarily safe for queers to come out because it might expose them to discrimination in health care, right?

(And that's even more true for the scarily conservative parts of the country, and for areas where finding a provider is iffy at best.)

Thanks for explaining your choice of "Miss." I hope you'll rethink it in future.

--Bardiac

 
At Wednesday, August 30, 2006 8:54:00 AM, Blogger Maurice Bernstein, M.D. said...

Bardiac, at first reading, it appeared to me that you made a good point comparing a heterosexual couple where the male is infertile to a lesbian couple where the partner is not designed to mate. One can take the view, as with non-therapeutic cosmetic surgery, if there is no pathology, a medical procedure should not be done. However, on further consideration,the question arises whether there is a pathophysiologic similarity and therefore the requesting partner in both cases should be treated equally. In the case of the heterosexual couple, there is a pathologic process involving the male of one sort or another. In the case of the lesbians, there is no physiologic reproductive process available which can become "diseased". Therefore, the status of the two groups are not comparable.

Bardiac, you have provided me an opportunity to return serve (a tennis term) with regard to word usage. You were critical of my use of "Miss" instead of "Ms" and I have learned. Now, I would like to be critical of your use of "queer" to replace the term "homosexual". The following is a description of the word "queer", as a noun, by Answers.com:

Offensive Slang. Used as a disparaging term for a homosexual person.

USAGE NOTE A reclaimed word is a word that was formerly used solely as a slur but that has been semantically overturned by members of the maligned group, who use it as a term of defiant pride. Queer is an example of a word undergoing this process. For decades queer was used solely as a derogatory adjective for gays and lesbians, but in the 1980s the term began to be used by gay and lesbian activists as a term of self-identification. Eventually, it came to be used as an umbrella term that included gay men, lesbians, bisexuals, and transgendered people. Nevertheless, a sizable percentage of people to whom this term might apply still hold queer to be a hateful insult, and its use by heterosexuals is often considered offensive. Similarly, other reclaimed words are usually offensive to the in-group when used by outsiders, so extreme caution must be taken concerning their use when one is not a member of the group.


Could it be Bardiac that you live in the U.K. and not in the U.S. and so your use of the word would be semantically less disparaging than its use in the U.S.? ..Maurice.

 
At Wednesday, August 30, 2006 9:37:00 AM, Anonymous Jaine said...

Bardiac asked: “Jaine mentions that there's room for respect on both sides in suggesting that Ms K shouldn't sue. I'm missing how Dr F shows any sort of respect in this case.”

Bardiac,I didn’t concern myself with whether the doctor was being respectful. I simply looked at the fact that his decision was based on faith and accepted that. (Faith: belief or trust: belief in, devotion to, or trust in somebody or something, especially without logical proof.) My personal view is that it is disrespectful for the doctor to refuse to provide this service but it is also disrespectful for this couple to demand he do so (legal point or not). In my opinion, the way to find a respectful solution is to allow the doctor to have his faith and for the couple to find a supportive doctor. As stated before if the couple could not find a supportive doctor then the situation would be far more complex.

By respect on both sides I meant from an outside view. If looking at this problem from the outside and deciding how best to show respect to those involved the easiest way is to allow both to win. Home-schooling and gay rights have some parallels in that both are new concepts for many people and society needs time to adjust.

In the example I provided, based on home-schooling, the people I originally dealt with were public school teachers/teaching professionals. They may not have the right to "refuse to teach a qualified student" but they have ways of dealing with students they object to. The policy I attempted to use was one where ‘any’ student is allowed to challenge government exams. I was told in detail, by professional teachers, how teachers would sabotage the process. Rather than try to fight people who clearly saw home-schooling in a very negative light we turned to the post-secondary system. The post-secondary system was fabulous. The behaviour of the K-12 teachers was disrespectful toward policy and students. However, it would have been disrespectful if I’d forced teachers to implement the policy because they believe (have faith) that home-schoolers are going to destroy democratic society just as some people believe gay couples raising children will destroy the family unit.

In the long run the best way to change this belief is for home-schoolers or gay couples or…to prove, via the product, that society isn’t in danger. Naturally there will be growing pains.

 
At Wednesday, August 30, 2006 11:01:00 AM, Blogger Bardiac said...

Just a quick comment: I think your quotation's use of "defiant pride" hits pretty close to the mark for current academic use of "queer" so far as it goes.

I'm a US academic who teaches theory on occasion, including queer theory. I use the term "queer" because it speaks to reclaiming language, to rethinking compulsory heterosexuality, and because alternative terms (gay/lesbian/bi/transgender) get even longer and require more explanation.

For other references: http://www.queerbychoice.com/qtheorylinks.html

http://en.wikipedia.org/wiki/Queer_theory

I understand your consideration of the "pathological" process, but I don't think that's the primary issue at hand; rather, it's an equivocation to enable discrimination. It may be a legal way around the issue, but it strikes me as unethical.

As I understand it, US anti-discrimination laws as they affect medical practices are based on the tie to government money; if you take government money, you can't discriminate based on race, etc. The doctor can opt out of taking government money and publicly discriminate all he wants.

Jaine, I'm glad your situation worked out well, but from what you've said, the teachers acted unethically. But, it's sometimes important to seek legal recourse in order to enact change. The doctor can have his faith; he just can't take government money and impose his faith through his medical practice.

 
At Wednesday, August 30, 2006 11:43:00 AM, Anonymous bob koepp said...

Maurice - My intent wasn't to suggest that the Dr had to be operating with one or another of the two rationales I mentioned. Rather, the point was to indicate that there _are_ different rationales that might be at work here, and to indicate that the morality of the Dr's choice varies with the rationale actually operating. Your further comments about the similarities with cosmetic procedures reinforces my point.

 
At Wednesday, August 30, 2006 12:18:00 PM, Blogger Maurice Bernstein, M.D. said...

Bob, if it is accepted that, as you say, a morality decision by the doctor could vary "with the rationale actually operating", then wouldn't that counter Bardiac's concludion, as I understand it, that what Dr. F. did was an unethical since it was "an equivocation to enable discrimination"? Or are you both talking about different issues and I am just confused? Maybe what I am asking Bob is whether you are in agreement with Bardiac concerning the doctor's ethics. ..Maurice.

 
At Wednesday, August 30, 2006 12:40:00 PM, Anonymous bob koepp said...

What I hoped people would take from my comment was that we can't judge the morality of the act in question if we limit ourselves to describing it simply as a refusal to provide AI to a lesbian.

To judge the morality of that act we need to know _why_ the Dr refused. If the Dr would provide AI to other people even when not medically indicated, but would not do so in the present case _because_ he/she disapproves of lesbianism, then the act in question is discriminatory. If, on the other hand, the Dr's action reflected a policy of not providing services that lack a medical justification, regardless of who wanted them, then I think the Dr's actions could be morally justified.

How Bardiac can divine that the Dr is equivocating to enable discrimination is beyond me.

 
At Wednesday, August 30, 2006 2:45:00 PM, Blogger Bardiac said...

Here's another try:

If Ms K needed ivf to get pregnant, would Dr F treat her? (Assuming as someone who runs a fertility treatment that he does ivf and that there's no real medical reason against such treatment for Ms K.)

 
At Wednesday, August 30, 2006 4:05:00 PM, Blogger Maurice Bernstein, M.D. said...

Bardiac, if there is no medical reason against IVF treatment to me would mean that there was a medical rationale for treatment then presumably, to avoid legal descrimination regarding sexual orientation, Dr. F. should be providing IVF treatment. In other words, if despite her lesbian orientation she had tried to become pregnant through a heterosexual relationship and was unable, would Dr. F. proceed with the treatments even though morally he would feel that procreation was not appropriate involving a lesbian couple? Well, if a doctor-patient relationship was already established, he would have to as a licensed physician and Medicare provider in state X. However, since this was not treatment in an emergency and no doctor-patient relationship was yet begun, he is under no legal or even ethical pressure to accept Ms K.as a patient for whatever is his personal reason. He may be criticized by others,including possible future patients, for this decision but it is his right as a physician to make.

The reason I presented the modification of the scenario, was to now establish that a doctor-patient relationship had already existed. Here now are the combination of facts which might affect our conclusions about legality and ethics. Lets say he had known that she was a lesbian vs that somehow he never suspected this orientation and she asked for IVF treatment. Lets say by history, Dr. F. was aware she had evidence of previous infertility or that there was no evidence that she had an infertility problem. How can Bardiac, Bob, Jaine, Moof or any of our other visitors play out this mind game? ..Maurice.

 
At Friday, September 08, 2006 8:54:00 PM, Anonymous Anonymous said...

Unless they are willing to pay out of pocket...A very real consideration IMNSHO... Medicare and many insurances )don't cover infertility. Gov't health insurance programs are about staying alive...not for more elective procedures...Shoot most won't even cover anesthesia for removing wisdom teeth.. or an epidural for delivering a baby...

 
At Thursday, January 11, 2007 5:17:00 AM, Anonymous Anonymous said...

Dr. Bernstein, you've made several arguments in support of the doctor -- and I don't think any of them are valid.

You wrote:
"Dr. F. is under no medical obligation to provide a service to satisfy this patient's request as a lesbian just as he wouldn't be obliged to provide the same service to another normally fertile patient who was heterosexual."

Ahh, but this is not the scenario that you originally described! Initially, you described the situation as follows:

"Doctor F. has strong personal religious views against abortion (which he would never perform) and also about inducing a pregnancy in a homosexual."

This statement clearly establishes that the doctor has a personal policy of refusal to carry out certain medical procedures that are in conflict with his religious beliefs. Note that, the above quote says that Dr. F "would never perform" an abortion, and that he "also" has strong religious opposition to inducing pregnancy in a homosexual.

Technically, I suppose, it might be possible for Dr. F to hold his "strong religious objections to inducing pregnancy in homosexuals", without these beliefs affecting his willingness to perform such a procedure. Technically, it might be a pure coincidence that he holds a policy against inducing pregnancy in the absence of pathology.

But, this is -- to say the least --implausible for a number of reasons. First of all, the sentence I quoted above certainly gives the reader the impression that Dr. F has a personal policy of refusing to induce a pregnancy in a homosexual. Second, I would say that there are *VERY* few persons out there that could hold "strong religious objections" to a procedure without those feelings affecting their willingness to perform them.

Third, I find it hard to believe that any fertility doctor would have a policy of refusing to induce a pregnancy in the absence of pathology.

Fourth, I believe that the "strong religious objections to inducing pregnancy in a homosexual" are -- in and of themselves -- morally wrong. Is it not objectionable to hate African-Americans, even if one's self control were so great that one could consistently refrain from active discrimination?

Finally, I believe that the pathology argument is completely irrelevant. In my opinion, the right to reproduce is about as fundamental a right as I can imagine. If someone wants to have a child, and there is a medically safe procedure (that you regularly perform as part of your duties as a doctor) that will allow the person to have a child, I believe you have a moral duty to perform the procedure. To refuse to administer IVF simply because the patient is homosexual is to attempt to impose your religious beliefs on others.

I believe that, if you have religious beliefs that are in conflict with the normal duties that a typical doctor would perform, then you should either not become a doctor in the first place or -- at the very least -- you should practice an area of medicine in which the issue would not come up. (i.e. Dr. F could have chosen to be a cardiologist).

Dr. Bernstein, you also wrote:

"However, since this was not treatment in an emergency and no doctor-patient relationship was yet begun, he is under no legal or even ethical pressure to accept Ms K.as a patient for whatever is his personal reason."

First of all, this is in conflict with what you wrote at the very beginning: "In the United States of America , no physician receiving government funding may discriminate against potential patients on the basis of race, color, religion or national origin and in the state of X, the anti-discrimination laws include, as do some other states, gender and sexual orientation."

Secondly, I believe that it is ridiculous to argue that Dr. F is ethically free to discriminate against anyone that is not yet a patient simply because she happens to be homosexual. What would happen if Dr. F refused to accept any African-American patients? Would you seriously argue that he is ethically entitled to refuse to accept any black patients?

 
At Saturday, August 09, 2008 11:23:00 AM, Anonymous Elle said...

Dr. Bernstein, I am an African-American professional lesbian going through the artificial insemination process now with an AI program geared towards lesbians. I am glad I read your blog because I too will sue my MD if he refuses to treat me based on his religious beliefs perhaps even using your forum as evidence.

Whatever is offered to a heterosexual UNDER AN HMO, I have the RIGHTS TO IT. I pay for it and the HMO plan does not cite I cannot receive treatment due to sexual identity. Nor when an MD signs a contract to be a provider does it say he can treat solely Heterosexual persons.

As a healthcare professional too, I do not want to be a provider for or treat several patients due to a variety of reasons but mostly due to obvious racism directed at me. I do not want to deal with plenty as a provider. However, as a healthcare professional I do what is needed to help all patients achieve what they want or need and what is medically sound. In the state of IL, a law was passed that if pharmacists did not dispense Plan B their license could be revoked. Too often physicians and pharmacists feel entitled to force upon patients and the indigent their beliefs. If physicians and other healthcare workers cannot provide patients what they need due to religious and philosophical beliefs, they need another career, private practice, etc.... Healthcare workers are HERE TO SERVE. You either serve or why go into something that could possibly interfere with the Hippocrates Oath that we all took.

 
At Saturday, August 09, 2008 1:02:00 PM, Blogger Maurice Bernstein, M.D. said...

Under California law, a physician may refuse to perform any procedure which the doctor finds is either medically not a standard of practice or is against his or her moral/religious views. Nevertheless, the physician has no legal right to discriminate between persons based on gender,sexual preference, race, religion, occupation, national origin as examples. If a professional relationship has already developed with the patient, the physician must nevertheless make a reasonable effort to attempt to find the patient another resource that will provide the patient their requested service. If no doctor-patient relationship has developed, such a response is not legally mandated though it would be professional for the doctor's office to provide some referral information to the patient if such information is available. ..Maurice.

 
At Monday, August 18, 2008 8:55:00 PM, Blogger Maurice Bernstein, M.D. said...

A current case pertinent to the discussion on this thread. In a unanimous decision, the California State Supreme Court rejected a San Diego County fertility clinic's attempt to use its physicians' religious beliefs as a justification for their refusal to provide artificial insemination for a lesbian couple.
Read the Supreme Court decision at this link. ..Maurice.

 
At Sunday, August 24, 2008 7:16:00 PM, Blogger ELLE said...

Thanks Dr. Bernstein for your reply. So far I have not had any complications with treatment unless you count a hospital or two not performing inseminations due to being catholic. I did not know that this existed in health care where organizations did not perform certain procedures. That is until it became my issue did it become relevant. My partner was also not allowed to go to an ultrasound with me which is discrimination but I wanted the process over so I did not complain. In the future though I will complain.

 

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