Israeli Court Urges Lesbian Couple to Go Abroad for Birth by Surrogacy

Some justices urged the women to agree to a last-minute Health Ministry compromise, but the couple rejected the move, arguing that the law is discriminatory against homosexuals.

Ilan Lior
Ilan Lior
Ilan Lior
Ilan Lior

An expanded seven-justice panel of the High Court of Justice heard the case Tuesday of a lesbian couple seeking to have a child by surrogacy in Israel instead of needing to get the procedure done overseas. Members of the panel urged them to accept a Health Ministry offer to have part of the procedure performed in Israel, but the couple rejected the overture and are now awaiting the final court decision, which will be issued at a later date.

Liat Moshe and Dana Glisko have been in a relationship for 10 years. Since Moshe hasn’t succeeded in getting pregnant, she wants to extract an egg from her body and implant it in Glisko’s womb. But current law allows only heterosexual couples to carry out surrogacy procedures in Israel; homosexual couples have to go overseas to do so. Moshe and Glisko petitioned the court, arguing that the law is discriminatory.

Shortly before Tuesday’s hearing, the Health Ministry agreed to let Moshe have the egg extracted in Israel, but said the implantation would still have to be done overseas. Several justices urged the women to accept this compromise.

“Everyone understands that the Health Ministry has taken a very significant step considering the law’s provisions,” said Supreme Court President Asher Grunis. “Therefore, it’s worth seriously considering the proposal.”

“Why not take advantage of this goodwill and the step that has been taken?” added Justice Edna Arbel. And Justice Hanan Melcer warned that by rejecting this offer, the couple will “endanger what the Health Ministry has been willing to do.”

Nevertheless, the women refused. Their attorney, Yehuda Ressler, argued that the law discriminates for no good reason, and this is unacceptable.

Moshe, a career officer in the Israel Defense Forces, added an emotional plea.

“For a whole year now it’s been hard for me to come and wear a uniform and represent the state, because I’m fighting the state today,” she said. “Aside from all the treatments I’m undergoing, which are hard to bear, I’m here because I feel I’m being discriminated against. I didn’t expect to be told ‘You’re an IDF officer, take off your uniform, get yourself out of the country – which I’ve served for 23 years – and then return.”

Moshe also claimed that IDF officers are forbidden to have surgery abroad, and that doing so would significantly decrease the couple’s chances of a successful pregnancy. “Taking a frozen embryo abroad isn’t the same as implanting it here while it’s fresh,” she argued.

Finally, she noted the expense, saying the IDF wouldn’t pay for the procedure abroad, and she would also have to take vacation time.

State attorney Dana Briskman acknowledged that having the procedure done overseas would cost some $3,000, including the cost of the trip, but said that given the current law, there was no other choice.

In May 2012, a public committee headed by Prof. Shlomo Mor-Yosef recommended liberalizing the law to allow single people and homosexual couples to also have surrogacies performed in Israel. The Health Ministry then appointed its own panel to review the recommendations.

This panel recently submitted its own conclusions, and the state promised the court yesterday that legislation would be submitted within a few months. But it’s not clear what changes will ultimately be proposed and whether they would cover Moshe and Glisko’s case.

Liat Moshe, left, and Dana Glisko in court, Jerusalem, August 20, 2013.Credit: Michal Fattal

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