A Tel Aviv Family Court judge set a legal precedent this week when she ruled that a woman whose eggs were used in the surrogate birth of her child is the baby's legal mother. DNA testing will be used to prove maternity. Previously, women who used gestational surrogates had to adopt their own children.
The ruling was issued by Judge Shifra Glick in a case involving a woman whose identity was not revealed and is referred to as "N."
Several months ago N. and her husband became the parents of twins after a woman from the Republic of Georgia carried her pregnancy. The couple turned to gestational surrogacy after N. endured a difficult pregnancy with her first child and was told by her physicians that a second pregnancy would be too risky. Since the twins' birth N. has remained in Georgia, waiting for her parental status to be clarified.
Like hundreds of other Israeli couples, N. and her husband used an overseas surrogate in order to save money and time. But while the legal status of surrogate births in Israel was clarified in 1996, the status of children born to surrogates overseas was still a gray area.
The Interior Ministry's response to this uncertainty was to require the biological mothers to adopt their own children when the infant entered Israel.
N. and her husband asked the ministry to approve DNA testing so they could be recognized as the twins' parents. The ministry did not respond, and in October the couple directed its request to the Tel Aviv Family Court.
The court instructed the ministry to reply within 30 days to the couple's request, which it failed to do. The State Prosecutor's Office, representing the Interior Ministry, asked the couple to withdraw their request for joint DNA testing and instead undergo a paternity test, which would allow the twins to be brought to Israel. After the couple returned to Israel with the twins, prosecutors said, N. should adopt her children.
The state's position was based on a 2010 statute that referred to an egg implant procedure that was not used in this case.
Because Georgian law recognizes a child's biological mother, not the gestational surrogate, as the parent, N. and her husband were able to obtain birth certificates for the twins in which they were registered as the parents.
In fact, had the couple concealed their use of a surrogate mother, on the basis of the valid overseas birth certificates they would have been able to register the twins without a problem upon their return to Israel.
The couple rejected the state prosecutor's proposal and chose not to conceal the surrogacy, preferring to wait for the court's ruling instead. In her verdict Glick characterized the position of the Interior Ministry, "that a biological mother must adopt her natural children, is intolerable and defies common sense."
"It's wonderful that justice was finally served, after fighting for so many months," the twins' father, who is in Israel with the couple's oldest child, said after the verdict was issued. "We are very happy, but we still have to wait for the Interior Ministry - we hope it doesn't delay the DNA test," so that N. and the twins can come to Israel as soon as possible.