In the wake of Saturday’s earthquake in Nepal, Attorney General Yehuda Weinstein's approval of a plan permitting surrogate mothers in Nepal who are carrying the fetuses of Israeli parents to enter Israel is a reflection of the ethical and legal complications involved in international surrogacy.
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The surrogate mothers in Nepal carrying Israeli fetuses, who are Indian citizens, will be required to appear before the local Israeli consular official, and to state that they are seeking to come to Israel of their own free will. The consul will advise the women of the risks involved in flying while pregnant, and will verify that no undue influence has been exerted on the women to get them to travel to Israel in advance of delivering the babies that they are carrying.
Such procedures may prevent women from coming to Israel against their will, but as it can be assumed that most of the fee that the woman receives for carrying an Israeli biological child is only paid once the child is delivered, the women may feel financial pressure to make the trip to Israel. On the other hand, coming to Israel may afford the women greater protection and provide the Israeli parents of the child a safer delivery than what would have been possible in Nepal.
The arrival in Israel of the surrogate mothers, who carry a child in utero but are not the child’s genetic mother, will also give rise to new legal issues, however. Surrogate pregnancies arranged by Israelis in Nepal generally involve surrogate mothers from India. This is the result of the ban that Indian authorities have imposed on surrogacy involving same-sex couples.
As a result of the prohibition, Israeli agencies which arrange surrogate pregnancies have turned to Nepal, where the procedure is permitted as long as the surrogate mother is not Nepalese. If indeed the children of these pregnancies are born in Israel, legal proceedings will be necessary – apparently in accordance with Indian law – that will severe the legal connection between the child and the surrogate mother, granting the Israeli couples legal status as the child’s parents.
Such legal entanglements could have been avoided if the door were open to the intended parents seeking to enter into a surrogacy agreement with an Israeli woman in Israel. Currently same-sex couples cannot do so because the law limits such agreements to couples consisting of a married man and woman. (A petition challenging the limitation is currently pending before the High Court of Justice).
In light of the high cost of surrogacy in the United States, many prospective Israeli parents look to Asia for surrogate mothers. These include heterosexual couples who either are seeking places where the procedures involved are faster, or who fail to meet the legal criteria at home.
If Indian surrogate mothers do come to Israel to deliver the babies whom they are carrying, it would be the first time that surrogate mothers are delivering children in Israel on behalf of same-sex couples.
There is something absurd involved in the need for a massive earthquake in Nepal to pave the way for such births here. This is a signal of the need to end the discrimination in Israeli law, meaning that the sexual orientation and personal status of the intended parents should not be factors in surrogate pregnancies.
Surrogacy agreements require strict oversight to protect all those involved, particularly the surrogate: They require her knowing consent – that she have legal representation, that the agreement be in a language that she understands, that her fitness and awareness of what is involved be verified, and that the terms of the agreement be reviewed. Such requirements are anchored in Israeli law, even if it still needs improvements.
In international surrogate pregnancies, however, it is not always clear that such conditions are maintained, and it is difficult to provide oversight that would ensure that. Surrogates who come to Nepal, including not only those who are pregnant but also others who have delivered their offspring and are still in the country, deserve protection when it comes to their health and welfare. All of the parties involved – the intended parents, the surrogacy agencies and the Israeli government – all have responsibility for ensuring this.
Surrogate pregnancy laws in Israel need to be amended so that they don’t require any Israelis, regardless of sexual orientation, to travel abroad. As long as surrogacy is allowed in the country, access to its benefits must not be discriminatory. On a global level, regulation is necessary to protect all of the parties involved, but that is a long way off.
In the Knesset term that ended before the election in March, the Health Ministry proposed a bill designed to make surrogacy available to both single women and gay men, along with regulating surrogate pregnancies involving Israelis abroad.
Even though the legislation contained positive provisions relating to protection of surrogates abroad, it was criticized, on one hand, on the grounds that it didn’t provide sufficient protection to women, and on the other, that its strict provisions were impractical and would put surrogate pregnancy abroad out of reach for Israelis. The bill was put to the first of three required readings but then the Knesset was dissolved.
In the absence of global standards, the issue of regulating surrogacy abroad is complex. For the time being, all involved have an obligation to see to it that surrogate pregnancies are carried out only in accordance with ethical and medical standards, with assurances that the pregnancy is being carried out of the surrogate’s free will, and under circumstances in which she is aware of the consequences and in which her rights are protected.
The current situation in Israel is the product of a distorted and discriminatory legal reality, and one would hope that the new Knesset would address the problem as soon as possible.