Israel's Supreme Court President Slams State's Position on Surrogacy Law for Gay Men

Esther Hayut said the state’s position that surrogacy should be legal only for women who cannot have children 'could be blatantly unconstitutional,' adding: Why are women allowed and men not?

Israeli Supreme Court President Esther Hayut.
Olivier Fitoussi

Supreme Court President Esther Hayut on Tuesday criticized the state’s position on surrogacy for gay fathers and said that the solutions that apply to women should also apply to men.

“This could be blatantly unconstitutional,” she said in a hearing on a petition filed by Etai and Yoav Pinkas-Arad that calls to amend Israel’s surrogacy law in a way that would allow gay men – both couples and individuals – an equal chance at parenthood.

The judges asked the state’s representative why there is a distinction between women with a medical problem – who can legally use surrogacy – and men. “Two people cannot bear a child, but one has a constitutional solution and the other doesn’t,” Justice Neal Hendel said to the state’s lawyer. Hayut added, “We are asking about a constitutional principle of equality, whether it is being undermined or not,” she said. “Why are women allowed and men not?”

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The state’s lawyer argued that Israel’s surrogacy law is, “Very, very innovative, even from a global perspective,” but Hayut replied that, “Meanwhile, the world is running forward on surrogacy.” Court Deputy President Hanan Melcer added that the state’s remarks were inaccurate because Israelis were actually traveling abroad for surrogacy. “By your description, sir, people should be coming here,” he said.

Protesters against the surrogacy law at  Ayalon Highway in Tel Aviv, July 22, 2018.
Moti Milrod

Health Ministry Director General Moshe Bar Siman Tov presented the state’s position that expanding entitlement could lead to a demand for surrogates that would exceed the supply. “Does this justify disqualifying this group?” asked Hayut. “Maybe if they would be in the eligible group there would have to be a ranking of priorities. But why exclude them in advance from those who could be eligible for surrogacy in principle?”

According to the state, since women who could act as surrogates are a limited resource, “We decided to allow surrogacy only for those who do not have another alternative,” since men have the option of jointly parenting a child with a woman. In response, the justices demanded a clear answer to the question of whether the law undermines equality or not, and reprimanded the state and the Knesset for consistently refraining from giving a response.

At the end of the hearing, Hayut announced that there would be no additional hearings on the petition. The state was granted 30 days to submit a clear response on the question of whether the law discriminates before the court rules.

The Association of Israeli Gay Fathers, which had submitted the petition along with attorney Hagai Kalai, was pleased with the hearing. “We came out encouraged, given that a large part of the hearing revolved around the court’s question regarding the remedy required in this instance to correct the injustice.”

Kalai was critical of the government and the Knesset, saying they, “Did not bother to submit a topical response to the court,” in a way that prevented a substantive discussion of the issues and showed disrespect for the legal process and the rule of law. However, he added, “We can hope that after a round of additional presentations by the parties ... a ruling will be handed down that will eliminate the serious discrimination in the surrogacy law,” he said.

Two weeks ago, the state notified the High Court that it had decided not to allow male couples to have children by surrogacy and that Prime Minister Benjamin Netanyahu’s position was that there was no political possibility of passing legislation that would allow this.

In July, an amendment was passed allowing women without a partner to use surrogacy. Before the vote, Netanyahu announced that he supported including single men in the law, but then voted against the amendment proposed by party colleague Amir Ohana that would have allowed this. Netanyahu later explained that he personally supports surrogacy for gay men but that there is no majority for it in the coalition. This led to huge protests and a nation-wide strike in support of equal rights for Israel's LGBT population.