The Ramat Gan Family Court has ruled that if a baby born to a couple via surrogacy is the man’s biological child, then his wife should be recognized as the child’s mother without having to formally adopt the baby.
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The ruling issued on Sunday by Judge Tamar Snunit-Forer came in response to the case of a baby girl born about half a year ago to a religious couple via a surrogate mother in Armenia. The baby was conceived from the father’s sperm and a donated egg.
Six weeks after the baby was born, a court confirmed the man’s paternity based on tissue testing, and granted the baby Israeli citizenship. But the Israeli authorities, following the standard procedure for babies brought in from abroad, insisted that his wife, who has no biological relationship to the child, formally adopt her before she could be registered as the baby’s mother. Israeli law does not codify procedures for surrogacy performed abroad.
The couple petitioned the family court and demanded that the woman be recognized as the mother without going through a lengthy adoption procedure. The couple, whose names were not released, argued through attorney Meir Rubin that the documents in their possession and the Armenian birth certificate prove that both of them are the child’s parents. They said the adoption procedure was offensive and would cast doubt on the woman’s parental status and her relationship with her daughter.
The state’s attorney, Idith Rahamim Mandelbaum, said that on the contrary, in a case where the mother did not carry the child or cannot prove a genetic link to the child, the only way to confirm parenthood is through a formal adoption. She added that adoption was in the child’s best interest and could prevent efforts by various elements, including authorities abroad, from questioning the girl’s status or her relationship to her parents.
She also noted that the woman would have to go through the process required of someone adopting a relative, which is far less demanding than the standard procedure, but that nonetheless requires an investigation and the supervision of professionals outside the court.
Snunit-Forer did not agree, saying that upon receiving a report on the couple from a social worker she could issue a court order recognizing the woman’s maternity.
“I was not convinced that the big picture − as the attorney general’s representative claims − requires that we prefer the adoption process over determining motherhood by this process,” Snunit-Forer wrote in her ruling. “In both cases we’re talking about an orderly legal process in which both sides have the right to make arguments and to examine the specific arguments made in the case at hand. The state’s argument that in the future there are liable to be claims of a parentage grab is not consistent with the fact that there has been a legal judicial procedure.”
She noted that Israel’s own Surrogacy Law does not distinguish between fertilization with the prospective mother’s own egg or a donated egg. She also referred to the report by the Mor Yosef Committee on fertility and birth in Israel, which was issued 10 months ago, and which recommended that both prospective parents who seek surrogacy abroad should be recognized based on the baby’s genetic connection to one of them.
The judge gave considerable weight to the surrogacy process, noting that the couple had initiated and conducted the entire process together.
“The obligation of both of them to the minor child, by the agreement signed, according to the birth certificate, and under the laws of the foreign country is mutual and absolute,” Snunit-Forer noted.
“This situation isn’t comparable to one in which the female plaintiff had met the male plaintiff and his daughter after the minor was born and had not been a partner to her birth; perhaps then there would be a reason to order that the minor be adopted. The intent to parent was joint, and the entire process until the minor’s birth was conducted jointly by the parties, out of a mutual desire to build a family unit that includes children. This cannot be ignored.”
During the hearing, the judge allowed both husband and wife to make statements. “This decision won’t be complete without fully quoting the words of the plaintiffs,” she wrote in her ruling. “We must understand the context of the plaintiffs’ remarks given that they are also religiously observant, and the legal process would have ramifications for them in the society in which they live.”
The father told the court that, “She has to be defined as the mother of my baby, because if they call her the adoptive mother, it would revoke my identity as a father.”
The mother added: “There was a surrogate, she carried her. There was an ovum donor, who gave her half her genetics, but she’s anonymous. That being the case, I’m the mother. She has no other mother.”