Israel's High Court Rebukes State for Ignoring Petition on Same-sex Surrogacy

Petitioners want single men, single women and same-sex couples to have the right to use the procedure, too.

A petitioner seeking surrogacy rights, right, with his lawyer and daughter, Jerusalem, March 1, 2016.
Olivier Fitoussi

The High Court of Justice has ordered the state to respond to a year-old petition to award same-sex couples and individuals eligibility to use surrogate mothers.

The High Court heard the petition Tuesday in an expanded five-judge panel headed by the court’s president, Miriam Naor.

Last week the state sought a postponement to let the new attorney general, Avichai Mendelblit, “examine the feasibility of the Health Ministry initiating a procedure to amend the law.” The court, which will hold another hearing in three months, ordered the state to respond within two months.

The petitioners – the couple Etai and Yoav Arad-Pinkas, Tammuz International Surrogacy and the Israeli Gay Fathers Association – seek a ruling expanding surrogacy rights to include single men, single women and same-sex couples.

“You are putting us in an impossible situation because there has been no response,” Naor said at the opening of the short hearing, addressing the attorney general’s representative, Nahi Benor. “You say, ‘There was a bill, it got stuck, there’s a new attorney general,’ without addressing the crux of the matter.”

Benor responded: “The situation as we see it is that in line with the ruling of this honorable court, the main way to deal with this issue is legislation.”

Justice Elyakim Rubinstein wondered why continuity wasn’t granted to the surrogacy bill proposed by the previous health minister, Yael German, which passed its first reading before the previous Knesset disbanded in early 2015. “That would have solved a great part of the problem of this petition,” he said.

Benor replied: “The person who is supposed to request continuity is the health minster, and this wasn’t done until this point in time.”

The Embryo Carrying Agreements Law was enacted 19 years ago. “For 19 years, same-sex couples, singe men and single women have suffered from a personal attack on their right to family life,” the petitioners argued.

The court has heard arguments on illicit discrimination in several petitions. Fourteen years ago, the court asked that more information be gathered before considering amending the law. Following the Arad-Pinkas petition in 2010, the state set up a committee headed by Prof. Shlomo Mor Yosef to examine fertility and childbirth arrangements.

In 2012, the committee recommended expanding the group of Israelis eligible for surrogacy to include single women. The committee proposed that single men be allowed to use surrogacy as well, but only on an altruistic basis, without payment to the surrogate mother.

Regarding surrogacy abroad, the committee ruled that a track be opened to recognize clinics in other countries. After publishing the recommendations, the Health Ministry appointed a committee to implement them.

In October 2014, the Knesset approved the first reading of German’s bill, which was based on the recommendations by the Mor Yosef committee. The bill let singles and same-sex couples use surrogate mothers in Israel. It limited the payment to surrogate mothers to 160,000 shekels ($41,000) per procedure, with the payment tax-free.

The bill also set rules for using surrogacy abroad. The Knesset was dissolved less than two months later, but the continuity statute, which would let progress on the bill continue from the same point in the new Knesset, was not invoked.