Last month, the Tel Aviv Family Court ordered the state to recognize the parenthood of a woman whose partner served as a surrogate for her frozen embryos and gave birth to twins. The judge lambasted the government for its role in the affair: The state made the women go through a paper chase to adopt the twins – because the parents were two and a half weeks late in filing their request. And this happened when the babies were in intensive care.
Smadar Peker-Nir, a surgeon specializing in breast-cancer surgery, and Hadas Peker-Nir, a financial manager, met in 2010 and married in 2013 in the United States. Smadar gave birth to a son, who was recognized as their child through an adoption order after a year-long bureaucratic process.
The couple later decided to expand their family and for three years Hadas tried to become pregnant. But after an emergency Caesarean section more than six months into the pregnancy, the baby died two days later. Hadas, after a stint in critical condition in intensive care, can no longer become pregnant.
The couple then asked the Health Ministry to let Smadar receive an egg from Hadas and have the baby. “Luckily I have three frozen embryos from earlier treatment attempts,” Hadas wrote in a letter to the Health Ministry’s legal adviser. “I have a partner who is willing to be a surrogate for me, and Israel has the greatest experts in the field.”
She said she knew that Israeli law did not allow such surrogacy, but the couple nonetheless asked the ministry to make an exception. The Health Ministry turned them down. Smadar wrote to the health minister, Yaakov Litzman, pleading with him to let her serve as a surrogate for Hadas’ embryos.
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The couple aren’t the only ones denied such rights in Israel. In 2006, then-Attorney General Menachem Mazuz (now a Supreme Court justice) gave approval for women to donate eggs to their female partners, but a 2010 law states that women may receive such donations only when they have a fertility problem. Thus by law Hadas could not give her eggs to Smadar to carry.
The women realized that to have more children, they would need to have the procedure done abroad. They transported the frozen embryos in containers cooled by liquid nitrogen to Cyprus, where the embryos were implanted in Smadar’s womb. After three attempts, Smadar gave birth to twins in 2017 in her eighth month of pregnancy.
At this stage, the government only considered the twins Smadar’s children, because she gave birth to them, even though genetically they were Hadas’. To get Hadas also recognized as their mother, the couple submitted a request for a parentage order.
The newborns suffered a number of medical problems, making the women two and a half weeks late in filing their request, missing the 90-day deadline after the birth. The state thus denied their request and told them to apply for Hadas to adopt the children, a much more arduous process.
The women went to court to force the state to grant Hadas parenthood without going through an adoption. The state said the time limit was intended to ensure that the decision for joint parenthood had been made from the outset.
Last month, Judge Keren Gill of the Tel Aviv Family Court ordered the state to recognize Hadas as a parent as well, saying there was no doubt that Hadas had chosen to be the parent long before the birth.
Gill said the government’s sole objection was based on the delay in filing the request, and said the good of the children justified providing the order without a long adoption process. The judge also ordered the government to pay the couple 3,000 shekels ($830) for legal costs within 30 days.
As the couple’s lawyer put it, the court “saw the injustice the state causes lesbian families when it imposes unnecessary difficulties on the approval of joint parenthood.”
She said that if the courts imposed large costs on the government in such cases, the state might reconsider its position and stop wasting taxpayers’ money on such unnecessary cases. “The only thing the government must deal with is the good of the children, not bureaucracy,” she said.
Straight women have it easier
Smadar said their case was “extreme and the entire establishment is abusing them.
“We needed to fly to the United States to get married because in Israel we couldn’t. After I gave birth to our first son, we went through a long bout of bureaucracy to receive an adoption order, even though we had planned this child as a couple,” Smadar said.
“We received the adoption [order] only after a year. Straight women can bring in any man from the street and register him as the father. When we wanted to expand the family, we turned to senior officials at the Health Ministry and no one responded to us.”
Smadar said she sent Litzman a heartrending letter – also as “a doctor and a gay person.” The ministry’s special-exceptions committee said the law did not allow such a request for an egg donation, and once again the couple had to seek a procedure abroad – that cost them tens of thousands of dollars.
“We were with two preemies in a fight for their lives, but for the state the important thing was when we submitted the forms,” Smadar said. “There’s nothing more offensive than this. Both of us live in Israel, we served in the army, we contribute to the community and are devoted mothers. And that’s how they treat us – like second-class citizens.”