Gay Couple Takes Ministry to High Court Over Refusal to Recognize Both Men as Fathers

Tomer Zarchin
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Tomer Zarchin

A gay couple filed a petition yesterday at the High Court of Justice against the Interior Ministry's refusal to register both men as parents of their daughter, who was born by means of surrogacy in the United States.

Dr. Ilan Tabak-Aviram, a clinical psychologist, and his partner, Alon Tabak-Aviram, a lawyer, one of whom is the biological father, are demanding to be registered as joint fathers, on the basis of official documents and a court order issued in the United States attesting to their parenthood.

Participants of the gay pride parade in Jerusalem, July 28, 2011Credit: Olivier Fitoussi

The law in Israel requires the non-biological father to undergo an adoption process before registering him as a father. But the couple says the ministry must register them both as fathers without any preconditions.

"There is no legal prohibition for a child to have two fathers or two mothers, so there is no reason for the Interior Ministry not to register us both as fathers," said Ilan Tabak-Aviram.

The Tabak-Avirams, who married in Canada in 2009 and are registered as married in Israel's Population Registry, have been living together for 11 years. A few years ago, they decided to have a child and started a process spanning four years and seven attempts of in-vitro fertilization in India and the United States that cost them hundreds of thousands of shekels.

At one point, they made a surrogacy contract with a clinic in the United States. Each partner gave semen samples that were used to fertilize eggs implanted in a surrogate mother.

The birth certificate issued by the State of Pennsylvania says the Tabak-Aviram couple are both the baby's parents. A local Pennsylvania court issued an order before the birth, attesting the two are the legal parents of any child or children born in the planned delivery.

On returning to Israel, the couple had a tissue test conducted for the infant, and found that Alon is the biological father.

They went to register as the baby's fathers, but the registry clerk refused their request, saying a baby can be born from the sperm of one father, so one child could not have two fathers. She agreed to register only Alon as the father.

The petition cites several High Court of Justice rulings instructing registration officials to register details such as parenthood on the basis of documents issued abroad.

They also cite a High Court precedent-setting ruling from 2000, in the case of Ruthy and Nicole Brener-Kadish. The court accepted the two women's petition and ordered the state to register the joint adoption order the couple had received in California for one of the women's biological son.

Ilan Tabak-Aviram said the joint registration as fathers is necessary for dealing with the health maintenance organization and schools, as without it the non-biological father would have no legal status vis-a-vis the child.