Israel Delays Decision on Allowing Same-sex Couples to Adopt

Under the present policy, such couples can only adopt children for whom no adoptive heterosexual married couple can be found.

A child at the Jerusalem Gay Pride Parade, July 2016.
Michal Fattal

The government continues to delay its decision on allowing same-sex couples to adopt in Israel. Last September, the High Court of Justice ordered Social Affairs Minister Haim Katz and Justice Minister Ayelet Shaked to formulate a position on whether to grant single-sex couples equal rights in adoption, the same as for married heterosexual couples, and to present this position to the court by February 2017.

The High Court’s order came in response to a petition filed by the Israeli Gay Fathers Association, with the Israel Religious Action Center, against the Social Affairs Ministry and the attorney general, asking the court to order an end to the present policy that discriminates against single-sex families in adoption.

A hearing was held on the petition on Friday morning, but despite the explicit order from the High Court, the government still has not yet come up with an agreed upon position on the issue. The lawyer representing the government asked for an extension of time for providing the two ministers’ response.

Today, adoptions by single-sex couples can be approved, but they are considered by law to be “individual adoptive” parents, and are discriminated against compared to heterosexual married couples. They can only adopt children for whom no adoptive heterosexual married couple can be found, and often these are children from at-risk families. In addition, same-sex couples must wait longer for an adoption.

The state has yet to provide the court with data on the number of children adopted by single-sex couples in Israel, but the petitioners estimate it is only a very few.

In the hearing in September 2016, the government asked to postpone the hearings on the case until the committee, headed by retired judge Yehoshua Gross, examining changes to the law on adoption submitted its report – and promised to present its new policy in February after studying the committee’s recommendations.

The Gross committee worked on the matter for 10 years, but as reported in Haaretz, it did not decide whether to allow same-sex couples to adopt in Israel, and left the issue for the relevant ministers to decide.

The government justified its request for an extension in yesterday’s hearing by saying the report was only received by the ministers last month – even though in practice it was released in November, and both the petitioners and press obtained it at the time.

The panel of justices, headed by Supreme Court Justice Esther Hayut, did not spare their criticism of the government’s delaying tactics, and ordered the ministers to submit their response by July 2. The justices made it clear that if the government violates their orders again, they will issue a temporary injunction on behalf of the plaintiffs and try to bring the case to an end.

Udi Ledergor, chairman of the Gay Dads Association, said the government was continuing its outrageous behavior and the request for an extension was another “dirty trick” intended on continuing the discrimination against them for as long as possible.

The members of the Gross committee, who could not agree on a recommendation regarding single-sex adoption, came up with two different proposals “in accordance with the changing times and entrance into Israeli society of ‘new families,’” states the report.

One proposal would allow same-sex couples to adopt children through the exact same process as married heterosexual couples. The adoptive parents would be required to be “a couple with a stable and long-term relationship, whose duration will be determined without any connection to the nature of the relationship between them.” This would apply to those living together in a common-law marriage too.

The committee examined a large number of studies about single-sex adoption, many of which found no advantage to those families with both a mother and father. Yet, some committee members felt that in the case of a single-sex couple, it would add “additional baggage” for the adopted child, who already carries a feeling of being different. So the committee crafted a second proposal in which the law would not be changed specifically for gay couples, only for common-law marriage. But such single-sex couples would be able to adopt if they could prove they shared a stable joint household over a period of time, to be determined by law.

In addition to the single-sex adoption issue, the Gross committee presented a draft of a broader bill to reform Israel’s entire adoption system. Among the recommendations are to take into consideration the child’s opinion during the adoption process, to establish a database of potential adoptive families in order to limit the use of foster families, to require the courts to follow up on adopted children until they reach age six, and speeding up procedures for adopting at risk children.

The Adoption Law was passed over 30 years ago, and has remained almost unchanged since. Single parents are allowed to adopt with court approval only in two cases: If the biological parents have died and the person adopting is an unmarried close relative, or if the adoptive parent is the partner of the biological parent, or a previous adoptive parent.

In 2008, then-Attorney General Menachem Mazuz made a precedent-setting decision that same-sex parents could also adopt as “individual adoptive” parents. This was applied to couples in common-law marriages as well. But even after Mazuz’s decision, the adoption process is still not equitable. Heterosexual couples are still given priority in adoption by the Social Affairs Ministry’s child welfare services, and often gay couples are only able to adopt children with problems who have been turned down by heterosexual couples first, such as those with health problems, older children, and those from distressed families.

The law still gives preference to a couple – “a man and a woman together,” in the words of the law – over an “individual” when it comes to adoption.

The child welfare services distinguish between two groups of children up for adoption: infants up to two years in age, who are given to couples without any children or those who have a single adopted child already; and children over two. The older groups also includes younger children who have health problems, those with siblings, children whose biological parents suffer from mental illness, and minors with other difficulties.

According to this policy, single-sex couples can only adopt children for whom no appropriate heterosexual couple has been found. “Married heterosexual couples are the only ones who can adopt healthy babies, while common-law couples or single-sex couples can only adopt children with special needs,” stated the Gay Dads Association in its petition to the High Court. They called this policy discriminatory, and said “it mortally harms their right to family life.”