Israel's High Court Set to Rule on Segregation, Surrogacy and the Premiership

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High Court justices Daphne Barak Erez and Anat Baron in January.
High Court justices Daphne Barak Erez and Anat Baron in January.Credit: Ohad Zwigenberg

The High Court of Justice is expected to rule Monday on a petition against the rotation of the premiership and on petitions concerning  gender segregation in academia and surrogacy for single men and gay male couples.

Justice Hanan Melcer is retiring Monday, making the day his last chance to provide opinions on these issues.

The Basic Law on the Government was amended in 2020 to permit the rotation government agreed by Benjamin Netanyahu and Benny Gantz. The coalition agreements of the current government specify that Prime Minister Naftali Bennett and Foreign Minister Yair Lapid are to switch jobs in two years.

The petitioners against the amendment – which include the left-wing Meretz party, a member of the governing coalition – claim it has created a situation where instead of a rotation of only the premiership, there are two completely different governments, each headed by a different prime minister.

According to the petitioners, this paralyzes the government and impairs Israel's parliamentary democracy. They say the amendment is illegal because it was passed via the “misuse of the authority of the Knesset.”

LGBTQ couples in a mass same-sex unofficial wedding ceremony in Tel Aviv two years ago.Credit: Oded Balilty / AP

The second ruling involves the right of gay male couples and single men to to become parents through surrogacy in Israel. In February 2020, the High Court ruled unanimously in favor of this step and gave the state one year to pass a law on the matter. On Tuesday, the state informed the High Court that such a law was politically "unfeasible" for now.

Consequently, the state asked the court to rule on the matter. Health Minister Nitzan Horowitz told the court he could not pass such legislation and his ministry would not object to the court issuing a ruling that would “express the state’s commitment to the right to equality of single men and same-sex couples.”

In light of Horowitz’s position, Attorney General Avichai Mendelblit asked the court to rule “sensitively” and focus only on legal remedies required by the petition on surrogacy. The petitioners in this case are Etai and Yoav Arad Pinkas through the advocacy organization the Association of Israeli Gay Fathers.

Prime Minister Naftali Bennett and Foreign Minister Yair Lapid at the Knesset.Credit: Ariel Schalit / AP

The third issue before the High Court this week is gender segregation at academic institutions in Israel. The petitions against allowing separate classes for men and women were filed in 2016 and 2017 by two groups. A group of academics led by jurist Yofi Tirosh called for abolishing separate academic tracks for the ultra-Orthodox; the Kohelet Policy Forum petitioned the court to remove all impediments to gender segregation.

Last week the court criticized the state, noting that gender separation is not limited to small groups in certain academic settings but spreads to the rest of academia. “It seems that as time passes, the spread [of gender separation] becomes permanent. It seems that this is not the end. Is what we have here a slippery slope? This is the beginning whose end we cannot see,” Justice Yosef Elron said at that hearing.

Regarding the amendment to the Basic Law on the Government, the petitioners want the High Court to employ two doctrines to abolish the amendment, one that the court said Thursday it would not use.

The former relates to an amendment to a Basic Law that is materially unconstitutional, while the latter refers to an amendment whose passage involved a procedural flaw. For example, in May the High Court issued a warning before the abolishment of an amendment to the Basic Law on the Economy, called informally the “Hauser compromise.”

Before that, in 2017, the High Court issued the same type of warning against an amendment to the two-year-budget amendment, also in the Basic Law on the Economy.

In the ruling on the nation-state law, Justice Menachem Mazuz stated that during the past five years the Knesset had passed 10 amendments to Basic Laws, and the ease with which the Knesset could change Basic Laws needed to be addressed in that ruling.

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