In a first-of-its-kind decision in Israel, the Ramat Gan Family Court has recognized both members of a lesbian couple as the biological mothers of the child they brought into the world together.
Six years ago the women first underwent a procedure in which an egg taken from one of them was fertilized with sperm from an anonymous donor and then implanted into the other's uterus. The Health Ministry approved the process in advance. After multiple tries, the procedure was successful, and in 2007 their son was born. The Interior Ministry, however, refused to register the egg donor as his mother, agreeing only to register the member of the couple who carried the pregnancy and gave birth to their son. If the egg donor wanted to be registered as his mother too, the ministry said, she would have to adopt him. The couple sued the ministry.
In its response the state noted that the Health Ministry had warned the women, before approving the procedure, that the egg donor wouldn't be considered the child's mother, and argued that there was no justification for giving both women this status.
But Judge Alisa Miller said the state's position was unreasonable.
"In the case before me, T. [the egg donor] and the minor are blood relatives," she wrote. "The minor is flesh of T.'s flesh, even if he did not emerge from her loins. Therefore, it is completely unclear to me how T. could adopt him - a possibility that defies common sense and logic."
The judge further noted that the boy "lives in a single-sex family unit, knows how he came into the world and recognizes both plaintiffs as his mothers. Recognizing T. as his mother and recording her as such in the Population Registry will give him certainty and confidence from the emotional, social and economic standpoints" - especially since an adopted child does not have all the same rights in the family as a biological one, she added.
"From the perspective of the child's welfare, this is a pragmatic, just, appropriate and desirable solution," Miller concluded.
Nevertheless, she made her recognition of T. as the boy's second mother conditional on a social-services evaluation to determine whether this would be in the child's best interests. She ordered the evaluation results submitted to the court within 30 days.
Miller also stressed that her ruling did not constitute "recognition of a new family structure, and is limited to the special circumstances" of this particular case.
No such case is likely to recur in the future, because the Health Ministry no longer permits women to be implanted with eggs donated by their lesbian partners, in line with its reading of a law governing egg donations that was enacted in 2011.
Attorney Naama Tzoref (Halevi ), who represented the couple, called the ruling "a precedent not only at the national level, but at the global level. It grants legal recognition to two mothers who will both have the same status, without any need for an adoption."
She said the women were surprised to have won so easily, having girded themselves for a lengthy legal battle. "They are proud of the Israeli legal system, which fills the lacunae that the legislator has left and has trouble filling," she added.
Representatives of the gay community also welcomed the decision, saying that even if no other lesbian couples found themselves in an identical situation, they hoped it would help couples in similar situations - like a case now before the Supreme Court involving a gay couple that had a child via a surrogate mother in the United States. The American birth certificate lists both men as the baby's father, but Israel recognizes only the sperm donor as the father and insists that the other man adopt the boy.
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