Israeli Attorney General's Legal Opinion May Ease Path for Same-sex Parents

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A lesbian couple with a child (illustrative image).Credit: Dreamstime

Attorney General Yehuda Weinstein submitted an opinion on Sunday that could break new ground in cases of same-sex couples raising a child.

The case before the family court in which he gave the opinion involves a request by a woman seeking recognition as the second mother of her partner’s biological child.

Until now, a precedent-setting ruling by the Supreme Court a decade ago paved the way for parental recognition of the partner of a biological mother if the non-biological partner formally adopts the child born to her partner. This was considered a great achievement at the time, but has since been recognized as a flawed process: It is illogical that a woman who planned with her partner to bring a child into the world, and raises it along with her, should have to formally adopt her own child. This system also had practical drawbacks since it required a parental suitability report from the social welfare authorities, which usually took a prolonged period of time because of a backlog, during which the non-biological mother lacked full legal standing.

In the case now before the court, the attorney general stated his agreement to the request by attorney Ira Hadar, who also presented the case 10 years ago in the Supreme Court, to the effect that the partner of the biological mother should be recognized as a second mother by means of a court order rather than adoption.

Weinstein’s opinion is that a statement from the welfare authorities – or other statement of a type to be determined by those authorities – can be presented to the court, thus opening the way for a faster and more efficient process.

The attorney general based his opinion on the Supreme Court’s ruling in favor of recognizing parenthood by court order in the cases of two men who are parents of a child born through surrogacy abroad. Increasingly, in cases of this type, a report from the welfare authorities is not required if the court order is issued shortly after the birth of the child; there is no need for such a report to be submitted to the court.

Thus, if the change Weinstein put forth in his opinion is to help ease the way for the recognition of two mothers, they must also be exempt from the need to wait for a welfare services report if indeed the birth of their child was planned jointly by both women.

Weinstein set a number of conditions for court-ordered recognition of the second mother’s status in such cases. One is that the two women must be domestic partners for at least 18 months, must not have a record of violence or sexual offenses that would give rise to concern for the child’s welfare, and their application to the court must be made no more than 90 days after the baby’s birth.

The last condition seems harsh, however, and it is not entirely clear why Weinstein stipulates that such an order cannot be issued at a later date.

The attorney general's position in this case differs from the one he submitted in another case, where he insisted that the non-biological partner’s parental status be recognized via an adoption process. In that instance, in September, the decision was that a “declarative judgment" could be issued recognizing the non-biological partner as the mother, following receipt of a welfare report – but that the report could be less extensive than that required in the case of adoption.

In his current position, Weinstein cited a bill that supported recognition of the parental status of a non-biological partner – which was proposed by MK Merav Michaeli (Labor) and was passed by the Ministerial Committee for Legislation, but whose progress was stopped due to an objection by Habayit Hayehudi – part of which calls for the less extensive welfare report.

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