Nadia Eisner Horesh, a mother of five from Jerusalem, discovered after the birth of her sixth child that she is liable to be a dangerous person. When she and her partner Lena Horesh turned to the Family Court in Jerusalem asking to arrange her legal status as the mother of their mutual daughter, to whom Lena gave birth, the state requested an affidavit from her to the effect that she hasn’t been convicted in the past for crimes of sex or violence. “If there’s a chance that I’m a danger to children, where were the authorities when it came to my five biological children, the oldest of whom is already 21?” asks Nadia.
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Apparently the state has difficulty digesting the change in the life of Nadia, a media consultant who divorced her husband and father of her five children, who are religiously observant, eight years ago. Lena, a photographer and art teacher, has been her partner for four years. Although shortly after their daughter was born the two submitted papers showing the strength of their relationship (wills, a shared living agreement and a parenting agreement), the state is piling up difficulties and delaying Nadia’s legal recognition as mother of their daughter.
Nadia, who has no criminal record, swallowed the insult and filled in the humiliating request. Although she provided all the papers required of her, the court was not convinced, and accepted the state’s recommendation to request an expert opinion – which requires sending a social worker to their home to examine their daughter’s environment.
In her explanation the judge wrote: “In light of the fact that this is a relatively brief relationship, the attorney general’s representative is correct in her view that there is a need for an expert opinion from a social worker in order to examine the actual situation, and to bring a full and detailed picture to the court about relations within the family. The expert opinion will help us to learn, among other things, about the petitioner’s understanding, practically speaking, of the need for continued stability and permanence in the life of the minor child even when the family unit disbands. This is the case even when a shared living agreement is signed between the parties.”
It’s not farfetched to identify a judgmental and even patronizing attitude here. “The assumption that I have no idea what it means to be responsible for children, when for eight years since my divorce I’ve been raising five children in joint custody with their father, is nothing less than bizarre,” says Nadia.
The spokesperson for the courts replies: “This is a case that is being heard in the Family Court behind closed doors and is subject to legal confidentiality, and therefore we cannot give a detailed answer. We find it important to note that this is a case that is far more complex than presented in the question, and that the considerations of the court are broader than those spelled out in the question.”
A family headed by two women has become the most common kind of family in the LGBT community, due to the accessibility of sperm banks for women’s use, as compared to a surrogacy process that gay men in Israel are not allowed to use. Although there are an estimated thousands of such households (no official statistics exist), the state has not regulated the issue in legislation.
Today the most common process for regulating the parenthood of the non-biological mother is to issue a legal parenting order in the court. Although issuing the order takes less time and is simpler than adoption, the process can be humiliating, exhausting and a cause of anxiety for those who require it. The Family Courts demand that women provide proof of the relationship between them and the “authentic relationship” with the child.
The criteria presented by the state as the instructions of the attorney general lack any legal basis, and are taken from the state’s reply in the first case in which a lesbian couple requested a legal parenting order in 2015. Among the conditions: The couple must be at least 21 years of age and residents of Israel, have been in a partner relationship for at least 18 months prior to the arranging of the parenting order, present a parenting agreement that was implemented before the fertilization process; submit the request within 90 days of the date of birth; provide an affidavit to the effect that the partner has not been convicted of violent or sex-related crimes, and the child must be born from an anonymous sperm donation.
Surprisingly, even in simple cases, when there is no separation or unusual life circumstances in the background, the state finds the time and resources to appeal optimal rulings of the Family Court. That happened about half a year ago, when the state appealed the Family Court’s decision to give eight lesbian couples a legal parenting order effective on the date of birth rather than the date of issue of the legal parenting agreement, as is usual in cases of adoption.
Fear of trafficking
In this case, the District Court judge rejected the appeal. In another appeal submitted by the state over a similar ruling that is still under discussion, the state wrote in its reasons for the request: “In the absence of a genetic relationship between the parents and his child, there is a fear that the child will be transferred as ‘merchandise’ with a cheapening of the sanctity of the value of human life and the value of the child’s life. Anyone who has the money will be able to ‘order’ a child as he wishes, and presumably the child will go to the highest bidder. There is therefore a fear of trafficking in fetuses and children.”
Sources who are very familiar with the work of the state representatives note that even the most conservative staff members in the Attorney General’s Office and the State Prosecutor’s Office are well aware that lesbians don’t traffic in children, but “in the absence of specific legislation, the rule of law must avoid breaches that are liable to be exploited by various entities.”
And there were also officials who admitted in private conversations that the ping-pong game being played by the state with the couples in the courts is an egregious waste of time. “Our hands have been tied by a bunch of fools,” one said in embarrassment.
Anat Bar Ilan, director of the legal department in the Tel Aviv district of the Social Affairs Ministry – the department that receives the highest number of requests for legal parenting orders (250 a year according to the Association for LGBTs) – refused to discuss these matters directly, but noted that the department staff “is drowning under this burden, and it comes at the expense of our statutory work in protecting minors and the helpless.”
The Justice Ministry spokesperson responded: “Because this is an order that for the first time established a relationship of legal parenting, there is importance in all the criteria determined before a legal parenting order. During adoption procedures the welfare services carry out a meticulous inspection of those requesting to adopt a child, by dint of the adoption law, which requires, among other things, the submission of an expert opinion by a social worker.
“On the other hand, in some of the cases in which a legal parenting order is required, no such expert examination is conducted. One of the fears in this situation is that if we don’t properly ensure that the parenting order really is based on an authentic relationship, people will also want to establish parenting relationships for reasons that do not accord with the good of the child. In addition, a situation may arise in which there will be a request for a parenting order regarding a child who already has two parents, a situation not recognized by the law.
“Therefore, the state is obligated, in procedures where a legal parenting order is requested, to carry out a proper investigation, as reflected by the conditions determined by the attorney general. It’s important to stress that all the above is valid even in regard to heterosexual couples (for example, in cases of surrogacy abroad).”
(Disclosure: The writer and her female partner are in the process of getting a legal parenting order for their daughter.)