Israeli Justices: Non-biological Dads to Get Status Only on Date of Court Order, Not Birth

Ruling might cost same-sex couples tens of thousands of shekels in lost benefits

A demonstration by gay parents in the southern Israeli city of Be'er Sheva, in 2018. 
Ilan Assayag

In a decision that dismayed and outraged the Israeli gay community, the Supreme Court has ruled that the non-biological father of a child born to a surrogate mother can be considered the child’s parent only from the day a court issues a parental order, not retroactively to the child’s birth.

The ruling, handed down on Monday, will cost gay couples tens of thousands of shekels, since the non-biological father won’t be entitled to tax breaks or parental leave prior to obtaining the parental order. The lack of parental status can also affect issues such as inheritance, child support, custody and national insurance benefits.

Justices Neal Hendel, George Karra and David Mintz issued their ruling on an appeal by the attorney general against a lower court ruling recognizing a non-biological father as a parent retroactive to the child’s birth. Family courts have granted such retroactive recognition in dozens of other cases in recent years, but now, this will no longer be possible.

For lesbian couples, who don’t require surrogacy, retroactive recognition of the non-biological mother will still be possible, but only if the application for a parental order is filed within 90 days of the child’s birth, the ruling added.

The justices accepted the attorney general’s argument that a parenthood order “doesn’t affirm an existing fact, but rather creates a new parent.” And since Israel doesn’t allow children to have three parents, they said, the non-biological father can become a parent only after the court ensures that the surrogate mother has renounced her parenthood.

“As people move farther away from the model of natural birth and turn to more complicated procedures, supervision over the process should be increased, to protect the welfare of the future child,” the ruling continued, urging the state to pass legislation regulating this issue. The economic costs of delayed parental recognition don’t justify violating this principle, the justices added.

Attorneys who frequently represent gay couples seeking parental orders said the ruling sends the gay community years backward.

“The ruling adopts the view that there is a ‘natural’ parent and an ‘unnatural’ one,” attorney Hagai Kalai said. “It’s based on the view that the court is doing the community a favor.”

It will also exacerbate the state’s “confrontational, arrogant, humiliating tone” toward gay couples, he added.

Attorney Daniela Yaakobi said the ruling “wipes out huge achievements gained through years of work.” Moreover, she said, its call for tighter supervision over parental orders will make it harder for gay parents to obtain such orders, “as if the state didn’t already impose enough difficulties on families from the gay community.”

Attorney Victoria Gelfand, who represented the couple, called the ruling “a punch in the stomach” that undermines “basic equality.”

Tel Aviv city councilmen Itay Pinkas Arad and Oz Parvin, who heads an organization of gay fathers, released a joint statement saying: “We are natural fathers just like everyone else. In 2020, it’s inconceivable that the state and the court should continue viewing us as suspicious families who need ‘close, careful supervision.’”