Israel's High Court Asks State to Ease Surrogacy Procedures for Gay Couples

Due to the lack of a legal framework in Israel, couples seeking to be recognized as parents of children born to surrogate mothers must undergo genetic testing and formal adoption processes.

Ilan Lior
Ilan Lior
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Ilan Lior
Ilan Lior

The High Court of Justice on Sunday heard a case involving two gay male couples asking to be recognized as the parents of children born to surrogate mothers in the United States. An expanded panel of seven Supreme Court Justices heard the petition.

Because of the lack of a legal framework for Israelis using overseas surrogates, the biological fathers in such couples are now required to undergo genetic testing to prove their paternity.

In the case of single sex couples, the man who is not the biological father is required to go through an adoption process so the state will recognize him as the second parent of the child.

The High Court has yet to rule, but the state said it would consider a number of the justices' recommendations as to how to shorten and simplify the process.

One of the two couples petitioning the court refused to undergo genetic testing. The couple is asking the state to recognize both of them as the child's parents based on a judicial order, medical documentation and a birth certificate - all from the United States. The child is now two and a half years old. The couple has another child, a five year old girl, who was born in a surrogate process in the United States. In the case of the daughter, one father underwent the genetic testing and the other adopted her.

In the case of the second couple, who was the focus of Sunday's hearing, the biological father underwent a genetic test but his partner is asking the court to recognize his legal parental status without adoption.

The court has banned the publication of any identifying details of the couples.

The panel of judges, headed by Supreme Court Vice President Miriam Naor, attempted to find a compromise that would be acceptable to both the state and the petitioners.

The judges asked the state to consider easing procedures for Israelis using foreign surrogates, while making the process of recognizing parenthood more flexible and shortening the process. The judges asked, for example, if it would be possible to speed up the process of recognizing genetic testing from foreign labs, which are not now recognized.

Haya Zandberg , the director of Civil Law Division in the State Attorney's Office, told the court that overseas surrogacy for Israelis is growing sharply. In the past eight years there were 314 such procedures, 70 percent of them in the last two years, she said.

The state is unable to supervise surrogacy overseas, as opposed to those cases conducted here, and therefore the state can only approve the process once it has been completed, as opposed to surrogacy agreements in Israel, she added. That is why the state must confirm the genetic paternity and the biological relationship to the Israeli parent. The genetic testing is the best way, said Zandberg. It is impossible to rely on foreign birth certificates for parentage in all cases, and that is why a paternity test is required, said Zandberg.

In response, justice Hanan Melcer asked Zandberg if every new immigrant would have to present such genetic tests, as what is the difference between the birth certificates they present for their children born abroad?

While the justices urged the state to speed up the surrogacy recognition process, they also told the petitioners that while they had the right to ask for a precedent-setting decision based on principle, such matters could take time, and they would have to wait in that case.

A pregnant woman in hospital. Credit: Reuters

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