Israeli law allows access to surrogacy procedures only to man-and-woman couples. Neither men and women without partners nor same-sex couples can receive approval for the procedure, which means having a surrogate mother carrying a fetus for them. Often their only option for bringing a child into the world is to turn to surrogacy abroad. That option has become increasingly popular for heterosexual couples, some of whom are eligible for surrogacy in Israel, but who have a hard time finding a surrogate mother who meets the legal conditions, and finding her within a reasonable period of time.
In recent years Israelis have increasingly been turning to surrogacy both here and abroad. But research by Haaretz reveals that in the past year, the increase in surrogacy procedures in Israel has come to a halt.
In 2012 there were 41 births in Israel via surrogacy, compared to 49 in 2011. It should be noted that according to law, not all heterosexual couples receive approval for surrogacy in Israel; they require a medical opinion to the effect that the mother is incapable of conceiving or carrying a pregnancy, or that a pregnancy is liable to cause a genuine risk to her health. In other countries that are destinations for Israelis, there is no such restriction.
In contrast to the decline in surrogacy births in Israel, there has been a significant increase in Israelis turning overseas for surrogacy. The dimensions of the trend can be gauged from requests to Family Courts for genetic tests for infants born abroad via surrogacy. The purpose of the test is to prove a connection to the Israeli parent, thereby making the infant eligible for citizenship, and to bring him or her to Israel. In 2012 there were 126 such requests to the courts, compared to 93 in 2011. And foreign surrogacy is relatively new; only five years ago there were only six such requests.
In 2012, there were 73 Israeli surrogate procedures in India, 25 in the United States and 21 in Georgia. A total of seven procedures took place in other countries - Armenia, Ukraine and Kazakhstan. According to the figures of the Population, Immigration and Border Authority, about 53 percent of those seeking surrogacy abroad were single, the vast majority men. This statistic may include same-sex couples, with only one partner filing the request for a genetic test. Of those carrying out surrogacy abroad, 32 percent were heterosexual married couples, 2 percent were unmarried heterosexual couples and 13 percent were same-sex couples.
Interior Ministry vs. courts
In the absence of legislation, the Interior Ministry has formulated a temporary regulation for Israelis choosing foreign surrogacy, but the courts have often criticized it. According to the regulation, after the birth abroad, the designated parents must request an order from the Family Court for a genetic test designed to prove a biological connection. After the order is issued, the child is given a saliva test that is sent to Israel. In addition, regardless of the surrogacy agreement or the laws of the country where the procedure was carried out, the surrogate mother must sign a declaration in front of the Israeli consul that she has no rights to the child.
Only after the completion of these procedures, which take three to six weeks, does the government issue a passport to the infant, and it can be brought to Israel. But that's not the end of the process. Until now the state has recognized only the biological father, while his male or female partner was required to adopt the child, even if the woman was the egg donor. In the past year the courts have several times criticized the need for the adoption procedure, which sometimes takes years and includes an expert opinion by a social worker, for which there is a very long wait.
The public committee headed by Prof. Shlomo Mor Yosef to examine the matters of fertility and birth published its recommendations in May 2012. The committee recommended, among other things, expanding eligibility for surrogacy in Israel to single women; single men will also be allowed to request surrogacy, but only on an altruistic basis, without payment to the surrogate mother. On the question of surrogacy abroad, the committee decided on a procedure to recognize clinics in other countries, with the status of parents using those clinics for the surrogacy procedure to be determined in an abbreviated process, without a need for adoption. After publication of the recommendations, the Health Ministry appointed a committee to examine their implementation. Over a year has passed, but they are still in the drawer.
The issue is now awaiting the High Court of Justice, in the wake of a petition filed by attorneys Judith Meisels and Hanoch Erlich on behalf of two male couples who are demanding that they be recognized as the parents of children born via surrogacy in the United States. One of the couples refuses to undergo a genetic test and wants to be recognized based on documents and a judicial order. In the other case, the biological father underwent a genetic test, but his partner wants to be recognized as a father without an adoption procedure.
In the most recent session, about five months ago, an expanded panel of seven justices, headed by Supreme Court Vice President Miriam Naor, tried to find a compromise that would be acceptable to the state and the petitioners. The justices requested that the state make things easier for Israelis who go abroad for surrogacy, making the process of recognizing their parenthood and registering their children more flexible, and shortening it.
As a result, the state recently declared that it would agree to grant a "judicial parenthood order" instead of an adoption procedure under certain circumstances, including a genetic test that proves a biological connection to one of the parents. This process is expected to be simpler and shorter than the current one. Anyone who doesn't meet the conditions will be handled according to the previous regulation. But in response to the court, the petitioners are leveling criticism at the state's position. Among other things they claim that the conditions that the state is now positing for the purpose of granting a parental order will lead to a restriction in opportunities for surrogacy abroad. They argue that the state's conditions will enable a surrogacy procedure limited only to the United States, which is much more expensive than that in other countries.
In Israel, NIS 200,000; overseas, much more
For those eligible for surrogacy in Israel, the cost of the procedure is estimated at NIS 200,000. Those who seek surrogacy abroad can do it on their own, through local clinics, or with the assistance of intermediary agencies, which charge a fee. The procedure is likely to be faster, but the financial burden is greater: Expenses include a payment to the surrogate mother, medical procedures, flights to the country where the procedure is being carried out and a long stay there, legal representation and in the relevant cases a mediation fee as well. The sum also depends on the success of the fertility treatments. In India the cost is at least NIS 250,000, whereas in the United States the overall cost is much higher, and is estimated at NIS 400,000 to NIS 500,000.
But even after overcoming the financial obstacle, Israelis also experience difficulties abroad. India, the preferred destination, recently declared that it is now forbidding surrogacy for same-sex couples or singles. Many other countries forbid foreign nationals from adopting, or make it very difficult, and only last week Russia prohibited foreign same-sex couples from adopting children there. "Israelis can adopt from abroad only children from countries who are signatories to treaties with Israel. The possibilities are almost nil," says attorney Irit Rosenblum, founder and CEO of the New Family organization. "The difficulties of adopting a child are leading more and more people to turn to surrogacy," she adds.