Israel Tells Top Court It Opposes Adoptions by Same-sex Couples

State says adoption by gay and lesbian couples would add 'additional baggage' for child. Current policy only allows them to adopt children for whom no heterosexual married couple can be found

The Gay Pride Parade in Jerusalem, 2016.
The Gay Pride Parade in Jerusalem, 2016. Michal Fattal

The state has informed the High Court of Justice that it will not lift the discriminatory procedures for same-sex couples who want to adopt children in Israel.

The Social Affairs and Justice Ministries told the High Court of its position ahead of the hearing that will be held later this week on a petition asking the court to end the present adoption policy, which discriminates against single-sex and common-law marriage families.

Same-sex couples can currently be approved for adoption, but they are treated unfavorably compared to heterosexual married couples. They can only adopt children for whom no adoptive heterosexual married couple can be found, often those coming from at-risk families. They usually must wait longer to adopt, and once they do, they are considered to be two individual adoptive parents in the eyes of the law.

The petition to the High Court was filed by the Association of Israeli Gay Fathers, together with the Israel Religious Action Center of the Reform movement, against the Social Affairs Ministry and the attorney general.

“Concerning same-sex couples," the state brief reads, "it has been decided by the professional bodies in the Labor, Social Affairs and Social Services Ministry not to act at the present time to change the existing law."

In the brief, the state noted the Children's Welfare Service believes having single-sex parents would add “additional baggage” for the adopted child, who already feels different from his peers.

The state also said that it should be the Knesset and not the court that decides on this matter. "This is a controversial and sensitive issue," the brief said, adding that other countries had allowed same-sex couples to adopt only after deciding on allowing same-sex marriage.

The petitioners have been waiting for months for ministry heads to provide a response. Social Affairs Minister Haim Katz and Justice Minister Ayelet Shaked were scheduled to present their positions to the High Court by February 2017, but they requested to postpone the hearing until a committee that was examining changes to the adoption law submitted its report. The two promised to present their new policy in February after studying the committee’s recommendations.

The committee, headed by retired Judge Yehoshua Gross, worked on the matter for almost 10 years and gave a number of recommendations – but did not reach a decision on whether to allow single-sex couples to adopt in Israel, leaving the relevant ministers to decide on the issue.

Udi Ledergor, chairman of the Association of Israeli Gay Fathers, said the state has “declared war on gay families.” Time after time, gay families encounter cold-heartedness and stupidity by State Prosecutor's Office, who object to every request and petition by gay families in their demands for equality in adoption, surrogacy, parental registration and family life, he added.

“It's amazing that Israel is willing to spend enormous resources on legal procedures whose entire goal is to harass and abuse gay families, instead of directing those resources to improve the lives of its citizens, who only want equality before the law and state,” he said, vowing to continue the fight for same-sex couples.

The Adoption Law was passed over 30 years ago, and has remained almost unchanged since. Single parents are allowed to adopt with court approval in only two cases: If the biological parents have died and the person adopting is an unmarried close relative, or if the person adopting is the partner of the biological parent, or a previous adoptive parent.

In 2008, then-Attorney General Menachem Mazuz made a precedent-setting decision that same-sex parents could also adopt as individual adoptive parents. This applied to couples in common-law marriages as well. But even after Mazuz’s decision, the adoption process still did not become equitable. Heterosexual couples are still given priority in adoption by the Social Affairs Ministry’s Children’s Welfare Service, and often gay couples are only able to adopt children who have been turned down by heterosexual couples, such as those with health problems, older children or those coming from at-risk families.

Preference is still given to a couple – “a man and a woman together,” in the words of the law – over an individual when it comes to adoption.

For its part, the Social Affairs Ministry issued a statement saying in part that, following deliberations with officials from the Justice Ministry, it was decided at this stage to adopt the Gross committee's recommendations, which recommended against expanding who can adopt and instead proposed wide-ranging reform of adoption procedures. "In addition, a major change was made in expanding the right to adopt to couples who are in common-law marriages," although with respect to same-sex couples, "the prevailing situation was left unchanged." Currently it can take more than seven years to adopt a child and the implementation of the Gross committee's recommendations should make adoption in Israel "substantially more efficient," the ministry said.

Ricki Shapira Rosenberg, a lawyer with the Israel Religious Action Center, said that while the state's reversal of its policy on adoptions for common-law couples was a positive step, the group regrets the ministers' determination to stick to the policy of not allowing single-sex couples the right to adopt like heterosexual couples. Rosenberg said this was an unconstitutional interpretation of the law, which violates the Basic Law on Human Dignity and Liberty and the principle of equality. The state's stance shows that it views single-sex couples as second-class citizens, she added.

In addition to the single-sex adoption issue, the Gross committee presented a draft of a broader bill to reform Israel’s entire adoption system. Some of their recommendations are to take the child's opinion into consideration during the adoption process; to establish a database of potential adoptive families in order to limit the use of foster families; to require the courts to follow up on adopted children until they reach age six; and to speed up procedures for adopting at-risk children.

The child welfare services distinguish between two groups of children up for adoption: In one group are children from infancy to two years of age, who are given to couples without any children or those who have already adopted one child; In the other group are children over two, babies and toddlers who have health problems, children who have siblings, those whose biological parents suffer from mental illness and at-risk minors.

Since single-sex couples can only adopt children for whom no appropriate heterosexual couple has been found, “married heterosexual couples are the only ones who can adopt healthy babies, while common-law couples or single-sex couples can only adopt children with special needs,” stated the Association of Israeli Gay Fathers in its petition to the High Court. They called this policy discriminatory and said “it mortally harms their right to a family."

Only three same-sex families, two male couples and one female couple, have managed to adopt children in Israel since 2008, when it became legal for such couples to adopt. A report from the Social Affairs Ministry obtained by Haaretz shows that in comparison, 1,700 heterosexual couples adopted children over that same period. Same-sex couples filed some 550 requests for adoption or surrogacy from 2008 through 2016.