Welcome to Ethics Consult — an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma in patient care, you vote, and then we present an expert’s judgment.
Last week, you voted on if a Christian clinic should be required to provide IVF to lesbian couples? Here are the results from over 1,000 votes:
Should the fertility clinic be required to provide IVF to the couple?
Does it matter that it’s the only fertility clinic in the community?
And now, bioethicist Jacob M. Appel, MD, JD, weighs in:
This scenario pits two widely held values against each other: The interest of prospective patients in receiving healthcare services without regard to their sexual orientations against that of physicians in choosing whom to treat based upon their own sincerely held religious beliefs. On the surface, the matter resembles other controversies in which those engaged in public commerce have refused service on religious grounds, most notably that of Masterpiece Cakeshop owner Jack Phillips’ unwillingness to bake a wedding cake for the nuptials of Charlie Craig and David Mullins — a matter than landed before the U.S. Supreme Court in 2017.
Several aspects of medical care make this “Ethics Consult” case distinctive. First, medicine operates as a guild sanctioned by the state with licenses: anyone can open a bakery, but as the number of physicians is artificially regulated like liquor licenses or taxi medallions, doctors may be called upon to serve the public in ways that others are not. It is also worth noting that IVF is increasingly considered a fundamental healthcare intervention closely related to the right to procreate and that several jurisdictions now cover it through state insurance plans.
On the other hand, one does not usually stroll into a fertility clinic off the street as one does with a bakery or a florist; the relationship between provider and patient is built upon trust and intimacy, and some physicians may have values that render them incapable of developing that level of trust when engaging with certain patients.
Finally, it is worth noting here that the case arises at the nexus of an unwillingness to provide a particular service (like elective abortions) and an unwillingness to treat a particular individual (on account of their personal status). Most Americans would accept that, in non-emergent situations, physicians shouldn’t be required to engage in particular practices to which they object (like sterilization or assisted suicide); few would tolerate a physician who refused to remove a patient’s gallbladder because she was a lesbian. Here, where the two situations overlap, the providers object to offering a particular service to a particular group of individuals on religious grounds.
One might establish a bright-line rule that such discrimination is never justified. This approach ensures that all patients are treated equitably, that there is no uncertainty when a couple seeks reproductive care, and that one group is not branded with stigma or a “badge of inferiority.” Whether doing so would increase access for lesbian patients is unclear. It is possible that some evangelical Christian IVF providers will simply close their doors entirely if required to provide services to which they morally object. As a result, all patients will have fewer providers to choose from and access to IVF will decrease both for lesbian couples and everybody else. (Conversely, it is also possible that these clinics are occupying a market niche that will be filled by more open-minded providers.)
At the same time, our society places a premium on religious freedom — even if a majority disagrees with a particular practice. Almost nobody would expect courts to require Catholic churches to hire female priests, although this would achieve more equity. Every effort should be made to defer to the rights of religious dissenters up until the point where doing so burdens others unreasonably. For instance, most states let those with religious objections opt out of childhood vaccination, but might approach the matter differently if doing so dropped the larger community below herd immunity. But what is unreasonable? It seems relevant here that this is the only clinic in the couple’s area. One might reach a different conclusion if the couple had easy, affordable access to alternative IVF services.
The fact pattern in this case actually arose in the case of North Coast Women’s Care Medical Group vs. Superior Court (2008). Guadalupe Benitez, a lesbian woman, was refused artificial insemination by Drs. Christine Brody and Douglas Fenton on the grounds that she was unmarried — at a time when gay marriage was not legal in California. The California Supreme Court ruled in her favor and found that the physicians had violated the state’s civil rights laws. However, many other states do not yet protect lesbian patients in this way.
A more challenging question may arise now that gay marriage is legal across the United States. What if a fertility clinic run by evangelical Christians will offer IVF to all married couples, gay or straight, but not to unmarried people? Unmarried couples are unlikely to face the same burden of prejudice as lesbian couples; marriage licenses are dirt cheap, so barriers to marriage are low. For many — but not all — ethicists, such a scenario stands much closer to the tipping point favoring religious freedom.
Jacob M. Appel, MD, JD, is director of ethics education in psychiatry and a member of the institutional review board at Icahn School of Medicine at Mount Sinai in New York City. He holds an MD from Columbia University, a JD from Harvard Law School, and a bioethics MA from Albany Medical College. Appel is the author of the recent book, Who Says You’re Dead? Medical & Ethical Dilemmas for the Curious & Concerned.
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