Tuesday, November 15, 2011

Single woman may sue Michigan fertility clinic for denial of IVF services

The Michigan Court of Appeals has released for publication its September opinion in Moon v. Michigan Reproductive and IVF Center. In that case, Allison Moon sued a fertility clinic because it would not provide services to her as a single woman.  Reversing the trial court, the Court of Appeals ruled that the clinic was subject to the state's anti-discrimination law and could not avoid litigation on the basis of a doctor's alleged right to choose his patients.

Under Michigan law,
the opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.
A place of public accommodation includes a "health facility" whose services are "available to the public."  Such a facility cannot discriminate on the basis of marital status.

The defendant did not dispute that it was a public accommodation, but it did argue that the law requires a doctor-patient relationship to be consensual and that therefore the doctor could decline to treat anyone.  The court ruled that the doctor can decline to treat a patient, but not on one of the grounds identified in the anti-discrimination statute. "A contrary interpretation," the court held, "would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian."

The case is extraordinary for a series of emails between Moon and the doctor at the clinic in which he explained his reason for refusing to treat her.  His claim was that he would not treat her because he feared that he could be held liable for child support for the resulting child.  Although he claimed that a doctor in Massachusetts had been held liable for child support in such a circumstance, no one I know has ever heard of such a case.  This is not a case like the Benitez case in California a few years ago, in which the doctor claimed a religious freedom right to discriminate on the basis of marital status.

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