For the first time, an Israeli court has ordered the Interior Ministry to register a baby born to a gay couple using a surrogate mother abroad as their child, without requiring tissue testing to prove the paternity of one of the parents.
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The Tel Aviv Family Court on Sunday ruled in favor of the couple, whose son had been born to an American surrogate. Deputy Court President Naftali Shilo was persuaded by the legal and medical documents and an expert medical opinion that one of the claimants was the child’s father. The judge even granted a parenthood order to the biological father’s partner, exempting him from having to go through the adoption process usually required in cases of foreign surrogacy.
The decision is expected to affect other Israelis who pursue surrogate births abroad, and who are required to do tissue testing after birth and wait for several weeks abroad until the results prove a biological link between the child and one of the parents. Only then can the parents bring the child to Israel. This contrasts with a child born abroad via a regular birth, who is registered by the Interior Ministry based on the foreign birth certificate and a declaration by the parents. Couples who use surrogate mothers in Israel are also not required to undergo tissue testing, but same-sex couples cannot do surrogacy in Israel.
The court decision was based on a statement by the High Court of Justice two-and-a-half years ago that a biological link between parent and child can be proven by ways other tissue testing.
The court refused the petition of the couple, Doron Gideoni-Meged and Doron Memet-Meged, who argued that they were being discriminated against because they were a same-sex couple and wanted to be recognized as the parents based on the parenthood order issued in the United States. The justices did, however, say that there is no real need for tissue testing.
“I don’t believe that there’s a reason to block the way for those seeking to use other ways to prove biological parenthood for the purpose of receiving status,” wrote Supreme Court President Miriam Naor. “So long as the petitioners can present to the court objective evidence that will satisfy it regarding the biological link between parent and child, even without genetic testing the court may determine that there is a biological parenthood link.”
The couple who had turned to the Tel Aviv Family Court objected to genetic testing because it was a discriminatory demand made only of single-sex couples. The state argued that their refusal to conduct genetic testing should count against them, because it stems from their fear that no biological connection would be proven. The tissue testing, the state said, “is aimed at preventing the conferral of Israeli citizenship to children who are not eligible for it, to assure that there is no circumventing of the adoption laws regarding international adoptions and to prevent the trafficking or kidnapping of children.”
The claimants presented the court with a host of medical documents to prove the link between one of the fathers and the child, along with the American parenthood order. The director of the U.S. institute where the fertilization took place also testified. The court appointed a fertility expert to issue an opinion, and he said there was less than a 1 percent chance the baby wasn’t the claimant’s child.
But although the judge granted the couple’s request, in his ruling he agreed that the best proof of a biological link was tissue testing. He noted that in this case, the claimants had to bring the fertility institute director to testify, and also pay for the court expert. The process took far longer than waiting for tissue testing results and used up valuable court time. The judge also accepted the state’s position that tissue testing was in the child’s best interests.
Attorney Yehudit Meisels, who represented the couple along with attorney Michal Levy, said it was an important ruling for all Israelis who undergo surrogacy procedures abroad. The ruling “somewhat reduces the discrimination that exists between couples that do surrogacy in Israel – where no tissue testing is required, and those who go abroad, and of course the discrimination against the gay community, which cannot go through the surrogacy process in Israel.”