Israel's Top Court Says Same-sex Surrogacy Law Discriminatory, but Defers Ruling

Israeli law permits surrogacy only for heterosexual couples. Top court: 'No justification to prefer heterosexual parentage to same-sex parents'

Itay and Yoav Arad-Pinkas with their children with their lawyer, in Jerusalem on Tuesday, January 10, 2017. The couple are now petitioning Israel's top court seeking surrogacy rights,
Itay and Yoav Arad-Pinkas with their children with their lawyer, in Jerusalem on Tuesday, January 10, 2017. The couple are now petitioning Israel's top court seeking surrogacy rights, Gil Cohen-Magen

The High Court of Justice was set to issue its ruling Thursday morning on a petition demanding Israel permit single people and same-sex couples to arrange surrogate births in Israel. The ruling, however, was postponed by six months to allow lawmakers to follow through with new legislation that might render the petition obsolete, justices said. 

Deputy Court President Justice Salim Joubran chose to make the verdict his penultimate ruling ahead of his retirement, but decided to defer the ruling, pending the new legislation. Joubran however criticized Israeli law, which only allows surrogacy for heterosexual couples, and said the current state of affairs is discriminatory.

"The process of writing the ruling was at its height and we were on the cusp of reaching a decision," he said, adding that in wake of an amendment to the relevant law passed in the Knesset some two weeks ago, the justices decided that "the time has not yet come for a final ruling."

However, the amendment fails to address surrogacy for either gay couples or single men.

Israel's Surrogacy Law, passed 21 years ago, permits surrogacy only to “a man and a woman who are a couple.” The petition was filed in February 2015 by Itay and Yoav Arad-Pinkas, along with another gay couple and two single women, asking the court rule that the law should include singles and same-sex couples.

In his interim ruling, Joubran noted that the court feels "no small amount of discomfort" from the current state of the law. "It is hard to agree with a situation in which single people and same-sex couples are prevented from exercising their right to become parents as part of surrogacy agreements. The law grants this right to one group but excludes another one due to its identity, preferences, orientations or life style.

"Personally, I see no justification to prefer heterosexual parentage to same-sex parents, and [I hold this to be true] generally, [and specifically] regarding the right to become parents – as well as [access to] the myriad of techniques to do so," he said.

Supreme Court Justice Salim Joubran, June, 2017.
Olivier Fitoussi

His colleagues on the panel this Thursday are Court President Miriam Naor, retired Justice Elyakim Rubinstein, and Justices Esther Hayut and Hanan Melcer.

During the last hearing in the case, which took place in January, the justices reprimanded the state for blocking surrogacy from same-sex couples, making it clear that the court would intervene if a solution was not found. Until now, same-sex couples seeking to have children had to make contact and negotiate a contract with surrogates abroad.

The state objects and said such a decision must be made by legislators in the Knesset, and not by the court.

Two weeks ago the Knesset passed the first reading of a different bill, which would allow single women to contract surrogacy services only if they suffered from medical problems that precluded them from carrying a pregnancy and only using their own ova. It does not offer anything to the petitioners in the case before the court. The court, nonetheless, said it would wait to see the legislation put on the books before ruling.

Legal battle of a decade

“A legal battle of nearly a decade is about to be decided,” said Itay Pinkas-Arad. “We hope the High Court will correct this historic injustice.

Claims that the law is discriminatory have been heard before in by the High Court, as part of several past petitions. Fifteen years ago, the court asked to wait and postpone a ruling on the issue until a time when enough research had accumulated to evaluate the possible ramifications of changing the law.

Following another petition filed by Arad and Pinkas, but in 2010, the state set up a committee, headed by Prof. Shlomo Mor-Yosef, which recommended permitting surrogacy to single women. The committee also suggested allowing surrogacy to single men, but only if the surrogate did it for altruistic reasons, and not for payment.

In October 2014 the Knesset passed a first reading of a bill sponsored by then-Health Minister Yael German that was based on the recommendations of the Mor-Yosef Committee, but stated that not only single women, but single men and homosexual couples could arrange for surrogate births in Israel. Six weeks after that vote, the Knesset was dissolved and a law which would have allowed the next Knesset to pick up the legislative process where it was left off did not apply, leaving it on the Knesset floor.

Two weeks ago the Knesset passed the first reading of a different bill, which would allow single women to contract surrogacy services only if they suffered from medical problems that precluded them from carrying a pregnancy and only using their own ova. It does not offer anything to the petitioners in the case before the court.