High Court Rejects Lesbian Couple’s Request to Undergo Surrogacy in Israel

In a 4-3 decision, the judges urged the women to accept Health Ministry’s compromise proposal

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The High Court of Justice denied the petition of a lesbian couple who had asked to have a child by surrogacy in Israel instead of having to undergo the procedure overseas. The special seven-justice panel voted four to three against. The full opinion has not yet been released.

The couple, Liat Moshe and Dana Glisko, have been in a relationship for 10 years. Since Moshe has not succeeded in getting pregnant, the couple wants to extract an egg from Moshe and implant it in Glisko’s womb. But current law allows only heterosexual couples to carry out surrogacy procedures in Israel; homosexual couples must go overseas to do so. A year ago, Moshe and Glisko petitioned the court, arguing that the present law is discriminatory and requesting the court order the state to allow them to carry out the procedure in Israel.

The state claimed the law does not allow such surrogacy and recommended the couple undergo the procedure overseas. At the court hearing two weeks ago, the justices urged the couple to accept a Health Ministry proposal to have part of the procedure performed in Israel, but the couple rejected the overture. The Health Ministry had offered to enable Moshe to have the egg extracted in Israel, but said that the implantation would still have to be done overseas. Several justices urged the women to accept this compromise.

Moshe, a career officer in the Israel Defense Forces, claimed that IDF officers are forbidden to have surgery abroad, and that doing so would significantly decrease the couple’s chances of a successful pregnancy. “Taking a frozen embryo abroad isn’t the same as implanting it here while it’s fresh,” she argued at the hearing.

In its ruling the High Court reiterated its recommendation that the couple accept the Health Ministry’s offer – even if it is only a partial solution.

Supreme Court President Asher Grunis, deputy president Miriam Naor, and justices Elyakim Rubinstein and Salim Joubran were in the majority. The minority opinion was backed by justices Edna Arbel, Esther Hayut, and Hana Melcer.

The High Court noted in its ruling that because of Moshe’s age “the passage of time has a negative effect on the chances of the success of the procedure the petitioners are asking to undertake. Therefore, our decision is to give our decision immediately and without explanation. This is to allow the petitioners to make a decision as soon as possible as to how to act and whether to accept the solution, which is a partial solution, that allows them to act based on the procedures and decisions of the exceptions committee,” wrote the justices.

In May 2012, a public committee headed by Prof. Shlomo Mor-Yosef recommended liberalizing the law to allow single people and homosexual couples to also have surrogacies performed in Israel. The Health Ministry then appointed its own panel to review the recommendations. This panel recently submitted its own conclusions, and the state promised the court on Sunday that legislation would be submitted within a few months. But it’s not clear what changes will ultimately be proposed and whether they would affect Moshe and Glisko’s case.

Liat Moshe, left, and Dana Glisko in court, Jerusalem, August 20, 2013.Credit: Michal Fattal

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