Israel's High Court Rules Against Surrogacy Law Excluding Single Men and Gay Couples

Judges rule unanimously that current prohibition violates the constitutional rights to equality and parenthood

Members of Israel's LGBTQ community protest law on surrogacy rights that excludes gay men, Tel Aviv, Israel, January 31, 2018.
Tomer Appelbaum

The High Court of Justice ruled Thursday that gay male couples and single men may use surrogacy services in Israel to become parents.

In a unanimous decision, Supreme Court President Esther Hayut and Justices Hanan Melcer and Neal Hendel wrote, “The sweeping exclusion of homosexual men from the use of surrogacy is viewed as ‘suspicious’ discrimination, suggesting that this part of the population is inferior.”

The court was ruling on a petition filed by the Association of Israeli Gay Fathers. The state was given one year to amend the relevant law.

In December 2018, responding to a previous petition by the organization, the state told the court it had decided not to let gay male couples use gestational surrogacy in Israel. Among the reasons cited by the state was a statement by Benjamin Netanyahu two months earlier in which the prime minister said he supported the move but did not have a coalition majority to pass the amendment.

The  said Thursday that prohibiting single men and gay male couples from surrogacy in Israel violated the constitutional rights to equality and parenthood and was “a harsh and humiliating violation of human dignity on the basis of sex or sexual orientation.”

In giving the state a year to amend the law the justices cited the complexity of the laws surrounding procreation and the fact that the current law was written with heterosexual couples with fertility or childbearing issues in mind.

If the state fails to amend the law within one year, the court said it would revoke the law or interpret it in such a way “as to eliminate [its] discriminatory effects.”

Currently, heterosexual couples and single women are eligible for surrogacy services in Israel when the mother has medical issues preventing her from getting pregnant or carrying the pregnancy to term.

Israelis who want to start the surrogacy process in Israel must obtain approval from a Health Ministry committee.

Israelis who are not eligible for surrogacy in Israel or who want to expedite what is often a lengthy process due to the small number of women who are willing to act as a surrogate, often go abroad.

The Israeli Gay Fathers association said: “We won! This is a dramatic and exciting day, in which Israel is finally making a step toward the family of advanced states in the world regarding LGBTQ rights. We are happy that after 10 years the High Court of justice has made a courageous and right decision, which does economic and social justice to tens of thousands of LGBTQ couples.

“Even if there’s still a way to go to reach full equality, from today we can all raise a family – just like everyone else. We must now see to it that the next government enacts a new, egalitarian law.”

Hila Pe’er, the chairwoman of the Aguda, Israel’s LGBT Task Force, said: “This is a historic ruling for Israel, for the gay community and for thousands of Israeli couples who can now fulfill their basic right to be parents. We hope that next week a government that promotes equal rights for the gay community in every aspect is elected.

”The petitioners’ lawyer, Hagai Kalai, said: “A decade ago we launched the legal battle to cancel the discrimination in the surrogacy law. The Knesset and government’s promises to correct the injustice were not kept, and the government and Knesset’s representatives went on arguing in the courts in favor of the discriminating, unjust arrangement. The High Court did well to state unequivocally that this is forbidden discrimination and that this stain must be erased from the law book. The news that a year hence the discrimination in the law will be revoked is a celebration to all who want equality and an amazing achievement for the petitioners.”