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The High Court of Justice ruled yesterday that children from abroad can be adopted by parents more than 48 years their senior if special circumstances justify it.

The court ruled that when such adoptions are denied due to the age gap, the decision can be reconsidered by an appeals committee. The case was filed by the organization New Family, which hailed the ruling as a breakthrough.

Court President Dorit Beinisch noted, however, that the opinion is not a wide-open door to make use of the exception. "It can be assumed that the appeals committee will formulate criteria for granting an exception to the rule, and will limit the exception to special, unusual cases that merit this exception," Beinisch said.

New Family filed its petition on behalf of two Israeli families who in the past had adopted children from abroad and sought to adopt more, but the prospective parents ran foul of the law's age limitations. The law empowers the social affairs minister to develop adoption regulations. This was done in 1988, and the provision included the age restriction.

The right to a family

The families argued that the right to a family is a constitutional right. The age provision, they said, violated this fundamental right because it failed to provide for exceptions, even in special circumstances. They also claimed that the law unfairly discriminated against adopting parents as opposed to biological and surrogate parents, for whom no such age restriction applied.

The state countered that adoption was not recognized as a fundamental constitutional right, as distinguished from the right to parenthood. It was also argued that while the state was not interfering in the right to have a family, the institution of adoption puts the interests of the child before those of the prospective parents.

Beinisch wrote in her majority opinion that the court should refrain from ruling that the right to adopt a child is a constitutional one "in light of the sensitivity of the constitutional issue and its complexity."

In a minority opinion, Justice Ayala Procaccia wrote that the age limitation doesn't violate constitutional principles and is designed to assure the child's well-being so that the age difference between the parents and child does not exceed reasonable norms. She took issue with the entire petition, saying that age limitations are appropriate, reasonable, and non-discriminatory and keeps with the purpose of the institution of adoption.

In reaction to the majority opinion opening the door to adoptions beyond the age range normally allowed, the New Family organization called the ruling a breakthrough.